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)

Some good points here from ONS on capturing sex and gender - scroll down.

They also mention pensions which I hadn't through of.

www.ons.gov.uk/economy/environmentalaccounts/articles/whatisthedifferencebetweensexandgender/2019-02-21#data-collection-benefits-and-complexities

I started looking, but I haven’t got very far yet. So far as I know gender isn’t a term defined in any legislation or common law, though it is used in the GRA and gender reassignment is used (and defined) in the Equality Act. I also don’t think there is any case law on what It means (again, could be wrong), but certainly (99% sure!) male and female refer to sex.

Gender identity is not protected in law, and it is a contested concept that not everyone believes in. Asking people "what is your gender identity?" is like asking "which God do you believe in?" Some people may believe in one or more gods, but many do not and would find the question fundamentally flawed. Sex, meanwhile, can be observed in every cell of the body, even thousands of years after death. It is scientific fact that only mammals of the female sex have been pregnant and given birth. I don't think 'part-time woman' Philip Bunce ever had to worry about getting passed over for promotion because his company thought he might go on maternity leave, no matter how many pink and lacy dresses he wore... If they do not collect data on sex, their pay gap and diversity performance measures will be meaningless.

Sorry, that was a bit confused, basically I do not think there is any legal definition of gender.

@PaleBlueMoonlight

Sorry, that was a bit confused, basically I do not think there is any legal definition of gender.

Very, very interesting indeed!

I have this at work at the mo.

I said in a male dominated workplace there may be sexism based on how others perceive you.

How you feel inside is different as you may not change presentation/ your sex is usually still obvious.

I pushed for a sex question m/f/prefer not to say.

And then questions about trans/gender.

It's better to ask both. They are different things. Got pushback a bit still...

I pointed out that if it were just gender I probably wouldn't say, or would say agender. Then they would not include me in any stats.

Tbh I thought fuck it. It's true. I have no internal sense of gender. Stats are needed on both sex and gender to really understand the workforce makeup.

Any employment lawyers out there? What do you think would happen at the moment if there was a sex discrimination claim in terms of pay under the 2010 equality act. If employer records are kept only by gender. Do you think an employer would be able to assert equality without evidence?

You might find the Legal Feminist blog interesting. There are lots of articles on the potential conflicts between holders of different protected characteristics, e.g.
legalfeminist.org.uk/2020/07/02/legally-this-is-not-a-trans-rights-issue-its-a-sex-rights-issue-a-blog-about-boxes/

Thank you very much, an interesting article, which i'll re-read to fully absorb the content. Not related but, I'm particularly interested in the conflict of interests in my work place. Our HR no longer holds staff records by sex, but rather by gender, and as a care provider to vulnerable children and adults will on occassion be expected to provide same sex care. As they don't hold records on sex they cannot guarantee this service. My workplace has been completely captured, with training and policy parroting Stonewall's position.

They also mention pensions which I hadn't through of.
Oh does this mean if we all self ID at pension age as men, they will have to give us the same state pension as men?
That might change some minds.

Sex is a protected characteristic and gender identity is not. Although gender reassignment is. How are they going to monitor their companies equality and diversity in regard to protected characteristics if they muddle something non protected like gender identity in? How can they assess and provide robust evidence in accordance to legislation when they are measuring the wrong thing?

How will they monitor pay, monitor the percentage of females in management or progression, family friendly policies,