Gender instead of sex in work diversity training

[FuriousFemale]

I did the online diversity and inclusion training at work recently. It lists characteristics that people may experience discrimination against. It doesn't specifically mention the equality act but the list is identical to the characteristics in the act accept gender is used instead of sex.

I want to raise this but I'm not sure how to do this safely. There should be absolutely nothing controversial about what I want to say but I've seen enough recently to know speaking up can be risky.

Has anyone challenged something like this before? How did you go about it and what was the reaction like?

If the diversity training listed all of the other protected characteristics except sex, I'd probably send an mail to the training department, cc your line manager, stating your surprise that they missed out a whole legally-protected group, and concern at their 'mistake'. I'd finish by saying that you hope this is corrected ASAP.

Make yourself sound concerned that their silly mistake could get someone into hot water, or the company accused of discrimination.

That's the 'shot across the bow' and hopefully would be enough.

Yes I have in a work policy. I just said I'd noted that they'd used gender instead of sex; explained it isn't the same thing but it's obviously easy to get confused, but as its not the wording in the equality act they'll need to change it so it's legally compliant.

I was surprised how easy it was. They just changed it.

I would send a brief, neutral email to the organiser stating you're very interested in diversity, and wanted to check if it should be sex rather than gender, as per the EA 2010.

I did this recently, and it was corrected with no quibbling; I think the faleshood that they're synonymous is so deeply engrained many people don't even think about it.

If they insist gender does trump sex (ie that work policies are above the law of the land), then you'll need to be careful.

I did at my work. We were discussing the policy and I asked how we could be trusted to get it right when we can't even get the basics right and pointed it out. Cue some disbelief and a googling in the equalities act and it was amended. Even managed to get in some sex vs gender talk.

The thing that makes me think it might not be well received is that it states they deliberately haven't used sex (there is a write up for each characteristic).

So it's not a case of thinking sex and gender are synonymous. It's very much deliberate.

I've queried it in one place and it was changed, queried elsewhere and was told I was wrong!

I don't want to let this lie. I'm fuming (as per my username) but I don't want to risk my career. Would anonomous be the way to go or would it not be taketh seriously?

oops anonymous

I want to raise this but I'm not sure how to do this safely. There should be absolutely nothing controversial about what I want to say but I've seen enough recently to know speaking up can be risky.

Has anyone challenged something like this before? How did you go about it and what was the reaction like?

Its been done many times by women in respect of schools, workplaces, local authorities etc. Communication is best kept brief and factual confirming that the protected characteristics referred to were those of Equality Act 2010 legislation and querying the apparent error.
In most cases organisations' error has been made in good faith and they should of course wish to correct this

womansplaceuk.org/sex-is-a-protected-characteristic/

www.sexnotgender.info/

If they state they've deliberately used the word "gender" instead of "sex" then that is a clear admission that they have deliberately varied from the EA 2010 wording. I would ask them to change this to comply with the law, using the resources linked R0wantrees post, as they have surely got themselves confused around this issue and have made an error with this.

I've queried it with a number of organisations and recommend taking a curious and factual tone eg "I was surprised to see that 'gender' was referred to given that the nine protected characteristics of Equality Act 2010 are..."

I’d go back and ask what their reasoning is behind “deliberately changing sex to gender” (use whatever wording they used) as it is of course sex that is the protected characteristic, not gender and it’s important not to get the two confused in this legal context.

The thing that makes me think it might not be well received is that it states they deliberately haven't used sex (there is a write up for each characteristic).

The Equality Act 2010 is legislation which is absolutely clear that the protected characteristic is sex, not gender. Sex and gender reassignment are defined in the Act, gender is not.
An organisation misrepresenting this opens itself up to potential issues. Correctly listing sex and gender reassignment ensures that everyone might be protected from discrimination.
Removing 'sex' prevents monitoring of sex discrimination.

@R0wantrees I think this is why there is absolutely no mention of the equality act even though it is listing all but 1 of the protected characteristics from the equality act

I recently queried my local council (East of England) whose Equality Policy had listed gender instead of sex: Their reply was:
I can see that the Policy does not list ‘sex’ but instead lists ‘gender’. As you will be aware, in addition to ‘sex’ which relates to just a man or a woman, ‘gender’ also includes non-binary and other sex definitions. I am aware that the Equality Act 2010 does not specifically mention people who identify under these other definitions but, in practice, the Council does give due consideration to the wider section of the community defined by gender.
I answered this rubbish with: I am afraid this does not deal satisfactorily with my complaint. Sex and gender do not mean the same thing. Sex is the protected characteristic and you do not list it. I cannot see that you have any right to change the wording of an act of law. Is it the case that you refuse to alter your wording to conform with the Equality Act?
How is non-binary a sex definition? Sex is binary. You can only be male or female. What other “sex definitions” do you have in mind? What other sexes are there?
Can you explain how you "give consideration to the wider section of the community defined by gender"? How would you define people’s gender?
Swiftly got a reply saying they would amend policy and show sex not gender. Definitely always worth pursuing this.

I think this is why there is absolutely no mention of the equality act even though it is listing all but 1 of the protected characteristics from the equality act

A very simple initial enquiry seeking clarification should elicit both recognition that the Equality Act 2010 is the primary relevant legislation informing Diversity & Inclusion policies as well as some indication as to the basis for decision making in the training.

The phrase "potentially getting ahead of the law" is useful.

Maybe email asking if the training will include reference to the Equality Act as you are unsure how it affects you in the workplace and that it would be an opportunity for you and your colleagues to understand the legal obligations of yourself as an individual and as a representative of the company.

I had this. On the official intranet list it says 'sex' but in the training session, sex has been replaced by gender. I queried it and asked if they were quoting from the Equality Act 2010 and if they thought it was appropriate to rewrite an Act of Parliament? Lots of people challenged me saying it was more inclusive. I replied everyone has a sex but not everyone has a gender (this was on a Teams call). Someone linked a court case in the chat that apparently showed the court had conceded that a non-binary person was covered by the Act (🙄 of course they are - gender reassignment is also a protected characteristic). This apparently proves that the Equality Act is wrong.

The trainers said they would check, but I bet they haven't. It was uncomfortable and I now think I've been labelled 'one of those'. A lot of people appeared to take issue with my raising it.

Someone linked a court case in the chat that apparently showed the court had conceded that a non-binary person was covered by the Act

What was the court case, can you remember?

@popcornsong

I recently queried my local council (East of England) whose Equality Policy had listed gender instead of sex: Their reply was: I can see that the Policy does not list ‘sex’ but instead lists ‘gender’. As you will be aware, in addition to ‘sex’ which relates to just a man or a woman, ‘gender’ also includes non-binary and other sex definitions. I am aware that the Equality Act 2010 does not specifically mention people who identify under these other definitions but, in practice, the Council does give due consideration to the wider section of the community defined by gender. I answered this rubbish with: I am afraid this does not deal satisfactorily with my complaint. Sex and gender do not mean the same thing. Sex is the protected characteristic and you do not list it. I cannot see that you have any right to change the wording of an act of law. Is it the case that you refuse to alter your wording to conform with the Equality Act? How is non-binary a sex definition? Sex is binary. You can only be male or female. What other “sex definitions” do you have in mind? What other sexes are there? Can you explain how you "give consideration to the wider section of the community defined by gender"? How would you define people’s gender? Swiftly got a reply saying they would amend policy and show sex not gender. Definitely always worth pursuing this.

The council don't get to define definitions in law.

If the law says the word 'sex' then the legal word is 'sex' not 'gender'. You can't just change the law.

Perhaps you should ask they to consult with a lawyer and ask them about how it would go down if they decided to redefine the word.

Indeed deciding to do this unilaterally would put them at risk of the following paragraph in the EA2010:

19 Indirect Discrimination

(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,
(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c)it puts, or would put, B at that disadvantage, and
(d)A cannot show it to be a proportionate means of achieving a legitimate aim.

Its like saying that if we changed the word 'race' to 'non-white' because whites are more priviledged and therefore don't need the legal protection in the Equality Act they might be entitled to because they are a different nationality.

Its nonsense. And its discriminatory.

And more importantly not legal.

Someone linked a court case in the chat that apparently showed the court had conceded that a non-binary person was covered by the Act

Its likely the Jaguar Landrover employment tribunal. My understanding is that his does not do everything that those invested in it would have everyone believe.

course they are - gender reassignment is also a protected characteristic

"Non binary" people were not specifically covered by "gender reassignment", a point the government acknowledged in 2016, and I believe the court's interpretation was based on the person's MTF trans identity and the treatment received due to that, and the spin put on it by activists is wrong.

This also was an employment tribunal, not a legal precedent.

Ahh, ok, just had a look, it's seems they were protected under gender reassignment because they had 'transitioned' from m to f. Always useful to be aware of these things. Thanks. 👍