Challenging 'gender' in Equality & Diversity Statement - responding to the 'inclusive' answer

[BedsorestoaSloth]

I'm gradually getting a little braver in picking at all the slime that has engulfed institutions. But would love some help in responding to a reply I've just had if any of you vipers are willing.

My email & response below. Hoping the screenshot of the original statement has posted too - interestingly I now can't find it on the Teeside Uni website, there's just a generic statement buried in their HR doc whereas previously it was on the page about funded courses. Which gives me hope that someone has gone away to have a little think.

I'd love to go back with a more specific reply and I know we have been finally getting some potentially helpful updates re EHRC etc but I can't quite work out how that might help here. Any tips welcome. My basic response is going to be - you can't override the Equality Act with a term you think is more inclusive, sex means something specific and you've blurred it. But official stuff would be much more compelling!

Hi

I was interested in your Digital Skills for Growth course and am keen to ask my employer about options.

I was a bit surprised by your Equality and Diversity statement, however. Please could you confirm why it excludes sex, which is a protected characteristic under the Equality Act, even though it includes other characteristics which are not covered in in the act?

As a woman from a STEM background, a commitment to equality on the basis of sex remains a crucial focus.

Many thanks
Sloth

Hi Sloth

Many thanks for expressing an interest in the courses provided by the Digital Skills for Growth project who are supporting employed people working in Durham until 30th September 2021 and Tees Valley until the end of this year, 31st December 2020.

Thank you also for reading our handbook and commenting on our Equality and Diversity statement. We have used the term gender(s) instead of sex to ensure that we include everyone and treat people fairly.

Kind regards
XXX

by using gender rather than sex they are not treating everyone fairly at all.

There are many women who have rejected the idea that they must conform to a gender norm. They cannot therefore say their gender is woman, because they know it isn't. In gender terms, such women are none binary, yet many reject this term, because it is still forcing them to have a gender,
Despite this, they are still routinely discriminated against because of their sex. Such women often feel excluded by people who ask about gender.

They've also removed homosexuality in favour of gender orientation.

Maybe they should remove religion of belief and replace it with spirituality. Remove marriage or civil partnership and replace with romantic or aromantic monogamous or polamorous relationships.

Would that not be much more inclusive?

Polyamorous

My understanding is that as they are a public body then they should be recording data in line with the equality act to ensure they can do accurate equality impact assessments

They don’t get to change the words of the legally defined protected characteristics just because blah blah inclusion!!

Sex
Sexual orientation
Gender reassignment

Wow. Your question was perfectly clear, calm and correctly detailed, so the misunderstanding looks deliberate.

Could you reply “The Equality Act 2010 includes sex, as well as gender reassignment. These are two separate categories. By excluding sex from your list, you are overlooking the needs of women.”

Also worth mentioning last week’s announcement that the GRA will not be not be changed to include self-ID.

But these are so clunking, compared with your original message. I hope someone has come up with something better while I’ve been typing.

Watching with interest

Maybe something like, it's great that you want to be inclusive, but obviously gender (do you mean gender identity when you use this word?) is not the same thing as sex, so you if you want to talk about gender that is fine (though it might help if you explain what you mean by that term as it means different things to different people, variously: the concept of gender identity; societal imposed expectations/stereotypes applied to a particular sex; a grammatical construction; a synonym for sex), but it needs to be alongside, not instead of sex. Sex is a protected characteristic that refers to biological sex. It is not the same as gender, but a separate measure of diversity and inclusion. You are obliged to ensure that you do not discriminate on the grounds of sex. It will be difficult to do this if you do not even recognise the category.

Or maybe something less wordy and arsey.

I’d say that Sex and Gender are not the same, and that Gender is undefined legally. I’d mainly point out that they’re not allowed to omit one of the PCs nor re-define them.

If you don’t want to be arsey, you could express concern that their policy might unwittingly lay them open to legal action.

I’d also point out that the other PC is Sexual Orientation not Gender Orientation.

I wonder who wrote their policy?

I don't know if you want to get into the weeds here, but if it's at all useful to explain why this is a problem:

Maybe point out to them that if they recruited 50% men and 40% transwomen and 10% male nonbinaries to their courses, that would be gender balanced and gender diverse, and ask them if they would consider that in this situation they had included everyone and treated everyone fairly.

Point out to them that female people are disadvantaged in tech because of specific issues related to how girls are socialised and how pregnancy impacts our careers and that replacing "sex" with "gender" elides the mechanism of how women are disadvantaged in this field.

And then reinforce that they're getting the law wrong.

If this is driven by mindlessness rather than malice, then maybe explaining the implications will help?

They can't just rewrite an Act of Parliament to suit their own agenda!

"Gender orientation" - that's a new one on me.

I think the Government needs to get involved somehow. So many companies and organisations are just making up their own protected characteristics. It's madness!

I mean, I know a lot of us are doing sterling work in trying to unpick this mess, but ultimately it shouldn't be down to us, should it? It's infuriating!

That first screenshot is full of grammatical errors too. It would be interesting to discover who wrote it.

Thanks for thoughts. Agree the 'gender orientation' is bizarre word salad too. As I'm not gay but I am female I was sticking with the 'this is my identity, you can't just erase it' but I can go back on that one too from a principle of the Act perspective.

How about:
Hi XXX
Thank you for your reply. I appreciate the intent to treat everyone fairly. Going beyond the Equality Act to open access and support progress for additional groups of people is great, however I was surprised that seemed to involve removing categories explicitly covered in the Act. Sex and sexual orientation have clear meanings in law - none of us can simply replace them at our own discretion.

I notice that the statement is no longer appearing on the site, so perhaps your HR department is reviewing in any case.

Thanks again for your response. I have raised the programmes with my employer so will see what they think.

Sloth

They're ignoring the Equality Act in the interests of 'fairness'?

I'd want them to explain that.

That email sounds good - polite but clear 😊

excellent email Sloth :)

The PC's are not meant to be inclusive. They are exclusive to the people they protect. By randomly and perhaps acting ultra vires they are diluting their effect. That is not the intention of Parliament.

Yes, excellent email, Sloth

Or maybe something less wordy and arsey.

I'd go full on wordy and arsey when they're being so useless about it!

I'm in the middle of drafting an email to someone myself. I have this as part of it:

"Failing to accurately measure sex impedes any organisation’s ability to adequately prevent, identify and address (and therefore defend claims of) sex discrimination, and disproportionately affects women, as they are by far the most likely category to suffer sex discrimination.

Failure to accurately record sex as either male or female inhibits an organisations ability to comply with HMRC’s requirement to include this information on RTI.

Recording myriad ‘gender identities’ is recording additional personal data, probably special category personal data, and, given gender identity is not a protected characteristic, before taking such a step, an organisation should ensure it has adequate legal basis for recording it, under GDPR/the Data Protection Act 2018."

Anything that quotes GDPR sounds suitably scary!

What's RTI @flowery? Does that apply to further education institutions?

Well done Sloth!
I was faced with something similar - a job was advertised in my organisation and the Equalities monitoring form did not include the word 'sex' at all - all the other characteristics were there, just not sex. How very strange! Pointed this out, got a very quick response and it's been corrected.

To complain, I looked up who was the head of HR in the organisation and sent the email directly to her. Her email wasn't publicly available - I could only find this because I'm in the organisation - much harder if you're outside.

Still - point being - send these complaints to the most senior person you can possibly find. Definitely works better!

I think a letter or email needs to be explicit that the terminology in the Act cannot be changed and remain within the law.

It looks as if they are using sex/gender interchangeably without realising they don't mean the same thing at all. They may be started from a place of avoiding the 'naughty' words sex and sexual. That wouldn't be very grown up, but the wouldn't be the first. 🙄

I'd ask if they've run the wording past their legal department. That should do it. You could add that they have, possibly inadvertantly, omitted to make clear that they ensure equal opps for men, women and gay people. Which is basically everyone, right?