FCA consultation on "self-ID" for women on boards of large companies.

[2catsandacomputer]

I'm clearly spending far too much time on twitter at the moment.

I came across this:-

twitter.com/blablafishcakes/status/1449674292111740931

There's good reason to have a legal requirement that company boards contain a certain %age of female members. But can you even IMAGINE that anyone thinks it's fine so long as that %age simply IDENTIFY as women? I mean, that's insane, right? Well, that's what they're trying to do.

It turns out that the Financial Conduct Authority (FCA) are proposing that large companies in the UK should report on the number of women and ethnic minorities that are on the board.

Sounds great, but then they say that anyone who self identifies as a woman is to be counted as a woman!

The FCA are asking for feedback on this until the 20th (Wednesday).

The details of how to provide feedback are here:-

twitter.com/TheFCA/status/1420319228104675329

I just put some random thoughts together but I'm sure that there are many here who are much more eloquent than I am and who could make much better points:-

While I wholeheartedly agree with the majority of the wording used in Annex B, I am totally opposed to the definition given at 9.8.6F on page 4 of the Annex:-

"References to women in LR 9.8.6R(9)(a) and in the tables contained in LR 9 Annex 2 (for the purposes of LR 9.8.6R(10)) include any individuals who self identify as women. References to men in the tables contained in LR 9 Annex 2 (for the purposes of LR 9.8.6R(10)) include any individuals who self-identify as men."

This is clearly at odds with UK statute and recent case law.

The Gender Recognition Act 2004, Section 9(1) states that it is only after the issuance of a Gender Recognition Certificate that a person is recognised in law (with some exceptions) as being of the acquired sex.

The Equality Act 2010 has clear definitions of what men and women actually are. From Section 212(1):-

“man” means a male of any age;
“woman” means a female of any age.

In addition, you will no doubt be aware of the outcome of the recent application for judicial review in the High Court regarding self-ID on the census:-

Fair Play for Women v UK Statistics Authority [2021] EWHC 940 (Admin) 9th March 2021

Following which the Office for National Statistics (ONS) changed its advice on the census.

Since the FCA is also a public body, I would suggest that you are likewise opening yourself to the likelihood of facing judicial review. I would question whether it is wise to put yourself in that position.

If sex categories are to include those who merely "identify as" that sex rather than actually ARE that sex then that undermines the whole point of reporting these figures. The figures will have no real meaning at all and you will face the same issue that the ONS did.

You could have, to take it to an extreme, a whole board who are men, however since they "self identify as women" this would be reported as a 100% female board of directors.

Do you not see how ludicrous this is?

In your consultation you explicitly state at para 1.4 and elsewhere that "... we may later look to expand reporting and targets to other protected characteristics".

That is a great thing to do and when you do this it would be important to consider the protected characteristic of gender reassignment. However, at the moment you appear to be conflating gender reassignment with the separate protected characteristic of sex in an incorrect manner. You appear to assume that the proper comparator for a transgender person without a Gender Recognition Certificate (GRC) is that of the other sex. Whereas, the proper comparator for a transgender person without a GRC is actually someone of the same sex at birth as them.

For the purposes of examining discrimination, then a transwoman without a GRC is to be compared to a male who is not going through gender reassignment rather than to a female (R (Green) v Secretary of State for Justice [2013] EWHC 3491 (Admin)).

Is it really worth facing an application for judicial review over this point? Would it not be much simpler and more equitable to women to use statutory UK definitions of what men and women actually are?

Thanks for posting - there is an existing thread, but this has a much more attention-grabbing name. So let's keep this one up.

www.mumsnet.com/Talk/womens_rights/4375852-Please-read-if-you-work-for-a-public-listed-company-or-in-financial-services

@NecessaryScene

Sorry about that, I must have totally missed that and/or didn't appreciate what it was about.

The Financial Times were clearly thinking the same thing:-

Well said, not my area but you make accurate and thought provoking points

Bump

Thanks for this - very helpful. I sometimes find it hard to get started, these points will be a grest help.

That Financial Times cartoon awareness is creeping in everywhere.

We were joking about this a few years back. Scary to think it may really come to be!

I can see them all jumping on it with glee. All targets exceeded.. big pat on the backs all round!

Thanks, I appreciate this, it's very helpful! I'm mulling over my response now. I'm very nervous about including my very woke employer's name when submitting (even though I will respond as an individual), but I feel so strongly about this.

Well said!!

Useful thread on it here too

twitter.com/carolinefff/status/1450040053418311686

Is it really worth facing an application for judicial review over this point? Would it not be much simpler and more equitable to women to use statutory UK definitions of what men and women actually are?

What would the case be though? Companies already use employee's identification documents so nothing is actually changing.

If the boxes in the proposed table didn't explicitly say including those who identify the data would still include those who identify because that's the only information those submitting the reports have.

Nothing is actually changing here.

@BecauseOfTheRain

Thanks, I appreciate this, it's very helpful! I'm mulling over my response now. I'm very nervous about including my very woke employer's name when submitting (even though I will respond as an individual), but I feel so strongly about this.

When I replied I just put n/a in employer's name and said I was responding as an individual investor

Just adding the response form for those interested in accessing this directly.

www.fca.org.uk/cp21-24-response-form.

Bumping this up as so important - please do take the time to respond.

I put n/a in the firm name as well as I was responding as an individual.

I don't see how regulations can be made with a non-statutory definition of woman.

The PSED part of the Equality Act and directly refers to the Protected Characteristics. Gender Identity is not a protected characteristic.

The consultation document states that FCA are using self-id because it will allow them to compare their statistics with others, as advised by the ONS. They are wrong. After the census sex question debate, the ONS decided to ask for sex, which may be as described on a legal document such as a passport or GRC:

www.ons.gov.uk/census/censustransformationprogramme/questiondevelopment/genderidentity/census2021finalguidanceforthequestionwhatisyoursex

By using self-id gender instead of sex, FCA will therefore go against the ONS recommendation and reduce comparability with the census and other statistics based on ONS advice.

Sex Matters have released this

sex-matters.org/posts/data-and-statistics/sex-matters-in-the-city/

Please do complete the consultation. This is big.

Put n/a for organisation and complete as an individual.

Done.

You can email if you don't want to use the form. Do note if you do not want your response published though. Put: I do not consent to my response being made available to the public and wish it to be kept confidential - at the start of the email and read the disclaimer at the bottom of the online form page.

The email is [email protected]

“What would the case be though? Companies already use employee's identification documents so nothing is actually changing.”

As with the census, there is a difference between making it clear that the data required relates to legal sex and accepting that some employees may not provide this information.

Still time to complete this - I've just done it.

Just doing this now. What did people put in the contact details? I don't particularly want them made public but do want the substance of my comment published.

Bump. The FCA EDI proposal removes sex based rights. pls respond.