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?

God, who do they pay to do their research? I've just read We recognise that, by focusing on women (including those who self-identify as women) and ethnicity in our Listing Rule proposals, there may be concerns that we are overlooking the importance of other minority groups and protected characteristics (as described in the Equalities Act 2010).
www.fca.org.uk/publication/consultation/cp21-24.pdf

Well, they've excluded the protected characteristic of sex, for a start, because that means the sex you're born. And it's the Equality Act 2010, not equalities. Two errors in four lines. Are we meant to trust these people?

And if anyone has the spirit for another one this evening, the Welsh LGBTQ+ action plan consultation is still open till Friday 22 Oct:
gov.wales/node/40753/respond-online
and
www.mumsnet.com/Talk/womens_rights/4379250-LGBTQ-Action-Plan-Wales-Consultation-ends-22-October

Let's have a stiff drink when we've finished.

Seems things are even weirder in the USA than here:
In December 2020 in the US, NASDAQ proposed a new listing rule to require all companies on NASDAQ’s US Exchange to publicly disclose consistent, transparent, diversity statistics on their board of directors. Additionally, the rules would require most NASDAQ-listed companies to have, or explain why they do not have, at least two diverse directors, including:
• one who self-identifies as female and
• one who self-identifies as either an underrepresented minority (based on a US-centric definition) or LGBTQ+
Foreign companies and smaller reporting companies would have additional flexibility, being allowed to satisfy the requirement with two female directors.

Actually that's less flexibility for the foreign companies, as they would have to have two female directors. The US ones could be 100% white males, as long as they said they identified as something else!

The Times is writing a story about this right now. The journalist would like to speak to women - STRICTLY anonymously - who work in companies that may be affected by these changes, about their feelings on the topic. In other words, anyone who works at a UK listed company, or anyone who works at a UK financial services company regulated by the FCA.

Please consider speaking to her. Your identity will be not be published and there will be no identifying details. If you are willing to speak, please PM me and I will share her details.

@blowdryrat
@mildredsmussarus
@christinaxyz
@Imnobody4
@leafstamp
@mathsausage
@orangelizard
@ChazsBrilliantAttitude
@ChateauMargaux
@BuffysBigSister
@BecauseOfTheRain
@sweetgrapes
@2catsandacomputer
@NecessaryScene

Done - got it in. A bit worried about giving them my name and details but hey-ho.

Just sent mine (and the Welsh one but too late for wine now!)

Great to see this get coverage in The Times today. I hope the link below works. I used to think these were niche issues, even though I work in the sector. Now I know we have to fight every single attempt to change the language. If the FCA get away with it here, it becomes acceptable and firms like my employer will say "well, the regulator uses this language so we should too".

archive.md/mqWQE

Thanks for the archive. Good article.
Has the financial Times covered this in any way? Even just that the consultationwas happening.

LBC discussion from 3pm today

Bloody hell!!! Sheldon Mills (he/him)

TWEET
Lucy Bannerman
@TimesLucy

Sheldon Mills has senior roles at #Stonewall AND the financial watchdog @TheFCA
⁩
The FCA jumped up 10 places in Stonewall’s rankings last yr.
And now the definition of woman has been quietly changed in its new diversity targets.

Is there a link??

FROM THE STONEWALL WEBSITE
Sheldon Mills (he/him) is Stonewall's Chair of Trustees.
He is interim Executive Director of Strategy and Competition at the FCA, where he is responsible for policy, strategy, competition and economic analysis.

Previously, as Senior Director at the Competition and Markets Authority (CMA), Sheldon had overall leadership responsibility for the delivery of UK merger control across the entire economy and for the strategic design and implementation of the new UK State Aid regime.

He is a qualified solicitor and prior to joining the CMA he practiced law at King & Wood Mallesons and Jones Day.

Sheldon first joined the Board of Trustees in January 2013 and is the charity’s longest-standing trustee.

During this time, he’s been involved with the charity’s move to become trans-inclusive and has long supported Stonewall’s ground-breaking partnership with UK Black Pride.

He was born and raised in Cardiff, Wales.