Sex not gender in the workplace

[Bbub]

Hi all

You recently helped me with an email to my work place that record our gender identity rather than sex in diversity and inclusion monitoring and general staff surveys.

Part of their reply asked for “cases where we may need to know someone's sex as opposed to gender“.

Can anyone help me with my response?

I am planning to mention the pay gap, (we have a 16.9% pay gap) as this is based on self id. But dont feel that confident in arguing this. Any help appreciated!

Thanks

and other women's issues they like to educate us on (menopause, domestic violence)

Don't they have a legal obligation on sex?

Maternity discrimination, equal pay gap, sickness leave (link to gynaecological issues, miscarriage management, menopause). Percentage of senior leadership positions held by females.

Then you have areas which affect both sexes, but disproportionately affect women - part time workers and opportunities for progression, staff attrition at key life stages/caring responsibilities, dependents leave policy (mainly used by women as low earners?).

Depending on the industry other areas could include staff uniform policy, access to toilets/showers/changing rooms, appropriately fitting PPE (small male DOES NOT mean fits a female properly!).

They do record sex as part of the payroll records or something but it's never mentioned, only gender is reported in any company comms

If you have 100 people
50 are male, gender as male
20 are female gender as female
30 are trans women gender as female

You have 50 males and 50 females looking at gender

(Think that's right)

They need to be able to show it if someone goes to employment tribunal on sex discrimination issues ie finding a comparator if say it's pay between one male and one female employee.
A transgender employee would, arguably, have the choice of more grounds than just male v female to argue their case and it would in any case depend on circs of what the issue was about iyswim

I'm trying to point out that if we ask employees about discrimination in the work place, how to we ensure that discrimination against women isn't skewed by men identifying as women, because they won't suffer the same levels of discrimination as women..

Does that make sense

If they are monitoring characteristics to be compliant with the Equality Act, sex is a protected characteristic, gender is not.

how to we ensure that discrimination against women isn't skewed by men identifying as women, because they won't suffer the same levels of discrimination as women.

It maybe easier to put that as how do they identify discrimination against trans people. If only gender is recorded they have no idea if the protected characteristic of gender reassignment is being discriminated against. (Easier assuming your workplace is woke)

I am planning to mention the pay gap, (we have a 16.9% pay gap) as this is based on self id.

Having the statistics on sex may shed light on whether there is a systematic bias related to issues such as pregnancy and maternity leave etc.

As sex and 'gender reassignment' are the legally protected characteristics, really the question should be 'cases where we need to know gender as opposed to sex'.

@ErrolTheDragon

I am planning to mention the pay gap, (we have a 16.9% pay gap) as this is based on self id.

Having the statistics on sex may shed light on whether there is a systematic bias related to issues such as pregnancy and maternity leave etc.

As sex and 'gender reassignment' are the legally protected characteristics, really the question should be 'cases where we need to know gender as opposed to sex'.

absolutely this!!

Interesting question which is now coming to the fore. I suspect many employers probably have not thought about it. Predict as thinking evolves we will start to gather both sex and gender.

Gender pay gap is defined by Equality Act and it is gender (ie self-ID) that you use when calculating the gap. However, it is sex (not gender) is a protected characteristic. Not sure why it was set up this way - possibly so we didn't have to say "Sex pay gap"!

I’d ask on what cases would gender and not sexual actually be useful?

@ThatIsNotMyUsername

I’d ask on what cases would gender and not sexual actually be useful?

If you are discriminated against because of your gender expression - how you present rather than childbearing etc...

The sex pay gap 😅 yes that has confused me

Thanks all for your comments

The HR person who replied actually stated that gebder is a protected category as well as sex so I have to break that down to them first.. Its so exhausting but I must persist. All I'm asking for is for sex to be recorded as well as gender, not a big deal..

ThatIsNotMyUsername

I’d ask on what cases would gender and not sexual actually be useful?

If you are discriminated against because of your gender expression - how you present rather than childbearing etc...

^ I believe that would come under gender reassignment, so if your gender and sex don't match.

There's no way if a female born female presenting person was being told "you can't do that cause you're a woman" that a tribunal would be deciding if you were discriminated against based on their "gender identity", it would be a sex discrimination case.

So gender isn't useful unless recording gender reassignment

God I see what they have tried to do by rolling it into one but they've messed it up. Apparently trans people don't record their sex accurately and Qs on sex offend them, hence the different approach

The HR person who replied actually stated that gebder is a protected category as well as sex so I have to break that down to them first.

If you do that, hopefully the rest will follow...

Gender expression could be useful in understanding diversity. For example having a mix of different male and female gender characteristics in teams. There is some evidence that this is successful (particularly with different risk-taking behaviours which are associated with male/female characteristics). In this case gender could be a useful category for analysis.

Sex would be useful in understanding impact of childbearing, absence (women on average more prone to strokes, men to heart attacks), menopause etc.

People Analytics practitioners in HR would find having both of these categories useful. It depends on what type of questions you are looking to answer.

You are right of course there is also the issue of self-ID which is problematic and what a person understands by the terms "gender" and "sex" when they provide their characteristics. Anyone working in People Analytics has to be mindful of the quality and potential bias in the data.

Original message is asking what you should reply with. You could say:

Sex not gender is a protected characteristic per EA 2010. Therefore important to capture to highlight any potential discrimination hotspots...

Women (biological) more likely to be absent from work due to men (quick google will confirm) - causes could be menopause, childbearing plus different susceptibility to different illnesses etc- how can they establish hotspots /cause and effect if they don't capture sex?

Supporting pregnant employees - predicting volumes for certain initiatives then they would want sex not gender.

Similar for men, if they had a hotspot of heart attacks in one area of the business then sex would be the variable that would be useful to look at.

HR is moving towards evidence based, this relies on meaningful analysis and good data.

I would frame it as an additional category rather than "instead of". There's doubtful to be anything helpful waiting for you at the end of the "capture sex-only" path.

Good luck!

So as a member of the woman sex, say I play their silly game and say that my gender is female - what the hell does that tell them?

@Chocalholic1

Interesting question which is now coming to the fore. I suspect many employers probably have not thought about it. Predict as thinking evolves we will start to gather both sex and gender.

Gender pay gap is defined by Equality Act and it is gender (ie self-ID) that you use when calculating the gap. However, it is sex (not gender) is a protected characteristic. Not sure why it was set up this way - possibly so we didn't have to say "Sex pay gap"!

I am not sure this is right. From memory the gender pay gap regulations only use the word gender in the title (which has no legal force), in the legislation itself it refers to male and female, ie sex. The government guidance talks about using self-identifed gender, but I don’t know on what basis. Does anyone know if someone has analysed this?

See www.gov.uk/guidance/the-gender-pay-gap-data-you-must-gather

Yes, this is the guidance I was referring to. I don’t know what the legal basis is that they are asking for self-is gender rather than sex.

*self-ID

Well that would be interesting - if their guidance didn't actually match what is in the Act!! I wonder if anyone has looked at?

You've piqued my interest I'm away to look at the Act now!