Does anyone know if the gender pay gap reporting needs to be on sex or can be on gender identity?

[Thethingswedoforlove]

For those companies legally required to report their gender pay gap. Is it meant to be a sex pay gap? Or can it include anyone who identifies as a woman legally? I assume it should be on the basis of protected characteristics ie sex. And that including men who want to be known as women is neither within the spirit nor the letter of the point of doing it? But I know I might be wrong and what I want isn’t necessarily what is!

"the gender of each relevant employee and full-pay relevant employee (men or women) It is important for employers to be sensitive to how an employee identifies in terms of their gender and the requirement to report shouldn’t result in employees being singled out"

from www.gov.uk/guidance/the-gender-pay-gap-data-you-must-gather#task-1

Thanks @MangoBiscuit. I don’t really understand what that means though. Surely the point of the whole thing is to see what the difference is. I don’t actually understand what the words even mean?

Gender identity trumps sex, unfortunately - it's based on employee self-identification.

www.gov.uk/guidance/who-needs-to-report-their-gender-pay-gap#gender-identity

Legally, I believe this would be basically the same as the census - and that was clarified in court recently.

It's a legal thing, so you need to record people by their legal sex. As the law allows people to change their legal sex via GRC, then those with a GRC would be included in the opposite sex. Those without a GRC would not.

I think that's farcical, but it's what the law is. And it's a reason to not broaden the availability of GRCs, and arguably to abolish them altogether. They corrupt data like this.

I think it is fine to include people who have a GRC ( or I find it easier to accept). But people who just happen to self identify as the opposite gender? Can it really be ok to include that in the gender pay gap data? Can we actually pay any attention to the data if they are corrupted by self ID? Could a firm come under legal challenge id they included self ID and not just bio sex plus grc? Is the census a good enough precedent? (Seems like it is to me).

Could a firm come under legal challenge id they included self ID and not just bio sex plus grc? Is the census a good enough precedent? (Seems like it is to me).

I would have thought so, but maybe there's some difference in the way this stuff is legally drafted. It appears GRCs were taken to apply to the "sex" in the census.

But maybe the pay gap rules avoids ever saying "sex", so somehow they think GRCs don't apply - they use the words "man" and "woman" and feel free to define those as "over 5'7"" and "under 5'7"" or anything they like?

Is the pay gap thing even "law" as such anyway? The requirement to submit reports might be, but the guidelines about what they say might not be?

I think its all theoretical until there's a test case.

This is another situation where the government is providing guidance that does not comply with the requirements of the law.

The regulations clearly state that the difference between the pay of "men" and "women" must be reported. These terms are not defined in the regulations themselves, but the regulations were made pursuant to the power in the Equality Act, where they are defined as a "male/female of any age". So the legislation clearly mandates sex-based reporting.

The government guidance, as a PP has linked to, instead instructs employers to gather data on self-identified gender, and also to omit any employee who declines to self-identify their gender (or, presumably, self-identifies as something other than man or woman, as the reporting is done on a binary basis). I find this particularly infuriating as it means that the effect of sex discrimination on people who do not believe in gender ideology is massaged out of the reporting process. There's nothing in the regulations that allows companies to omit such individuals from their reporting.

Companies must follow the law, not the incorrect government guidance. Every company that signs off on their pay gap reporting when they have followed the guidance, and not the regulations, is breaking the law. Unfortunately there is very little institutional appetite for enforcing this.

Really helpful @SecondGentleman. Thank you

My employer’s HR system has a single field called Gender. I have repeatedly changed it from Female to “prefer not to say” and HR keep changing it back to Female (I’ve taken maternity leave so they do know I am female sexed). I might challenge them in writing on this..,

Legally because of gdpr employers etc are only allowed to collect data on protected characteristics (sex and possession of a GRC would be relevant here), unless they say why they are collecting it. So my response has always been 'why are you collecting data on gender identity and can you tell me what you'll do with it. Are you proposing to collect data on protected characteristics as well?"

They usually amend the wording to reflect Equality act.

I checked my HR details and I'm down as female but the box is 'gender'

Thanks for that, SecondGentleman.

If that's all accurate, then we need to demand the Government Equalities Office revise their guidance to comply with the law, and bring a case if they don't.

Same basic line of attack as the for the Office of National Statistics and their census guidance? With clear precedent.

The use of gender rather than sex started a long time ago (1970s if not earlier). Sex has always been the protected characteristic, but gender was seen as a nicer/politer/more diplomatic and so gender became common parlance rather than sex.

I know I didn’t question it when doing equal pay audits I used M & F as column headings but gender as the title. This transferred over to gender pay gap analysis which was something we did long before the legislation. So it wasn’t surprising gender was incorrectly used. I now know better and am very careful to use Sex and gender correctly.

The reality is the raw data for most organisations gender pay gap analysis will be sex M & F which will include those with GRC. This will be because payrolls hold complete records of sex, but any gender data records will be incomplete, as are those for disability, race etc.

There is a question of whether the legislation should be changed to sex pay gap. Personally I think their is justification for this.

@SecondGentleman we should definitely try and get this done. How did the census action begin? What can we do?

Sorry that was for @NecessaryScene

@OneEpisode

My employer’s HR system has a single field called Gender. I have repeatedly changed it from Female to “prefer not to say” and HR keep changing it back to Female (I’ve taken maternity leave so they do know I am female sexed). I might challenge them in writing on this..,

We have sex and "gender you live as" or something. But both are self filled so people can still change the sex one.

@NecessaryScene

Thanks for that, SecondGentleman.

If that's all accurate, then we need to demand the Government Equalities Office revise their guidance to comply with the law, and bring a case if they don't.

Same basic line of attack as the for the Office of National Statistics and their census guidance? With clear precedent.

Agree that we should demand that the GEO withdraws their inaccurate advice. But if they refuse then we have a better way of attacking it than bringing a case. The regulations say that the Secretary of State must report every five years on how the regulations are working. The report must:

"(a)set out the objectives intended to be achieved by these Regulations;
(b)assess the extent to which those objectives are achieved; and
(c)assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation."

The first report is due to be done in April 2022. And the current Secretary of State of Liz Truss. A campaign for her to use this review to issue accurate guidance and to consider a proper enforcement regime could go very nicely.

(Just for the sake of full correctness, I've relooked at the regulations and they actually refer to male and female, not men and women. Doesn't change my substantive point - these regulations mandate sex-based reporting.)

@OneEpisode

My employer’s HR system has a single field called Gender. I have repeatedly changed it from Female to “prefer not to say” and HR keep changing it back to Female (I’ve taken maternity leave so they do know I am female sexed). I might challenge them in writing on this..,

If you do challenge it in writing consider using GDPR as data controllers and data processors must hold accurate data. Also ask who has made the change to the HR system, as this will be recorded. You can the identify if it is a system automation or data cleanse etc.

FYI they may say cost of changing system to state the data fields name is sex is too expensive to justify. That will be rubbish as changing the name of the data field is relatively simple with a small charge.

Is there anything we can collectively be doing to make changes to influence this?

@Thethingswedoforlove

I think it is fine to include people who have a GRC ( or I find it easier to accept). But people who just happen to self identify as the opposite gender? Can it really be ok to include that in the gender pay gap data? Can we actually pay any attention to the data if they are corrupted by self ID? Could a firm come under legal challenge id they included self ID and not just bio sex plus grc? Is the census a good enough precedent? (Seems like it is to me).

Clearly it can't be recorded by gender identity because then all non-binary, gender-fluid, trans-femme, trans-masc, genderfree etc etc etc people would be excluded. And they would need to define gender identity before asking each employee to record it, rather than assume everyone's gender identity based on what they recorded as their sex.

It has to be by legal sex.

The point of the gender pay gap reporting is to establish what effect gender stereotyping and gendered expectations of men (the sex) and women (the sex) have on pay.