Should 'gender' rather than 'sex' be prioritised in the workplace?

[WeeBisom]

I've just read an article by Robin White (www.internationalemploymentlawyer.com/news/rationalising-sex-and-gender-terms-workplace) arguing that gender, rather than sex, should be the prioritised characteristic in the context of the workplace. I have some problems with this, and wondered what other people think.

Robin defines sex as a 'physiological characteristic', and gender as 'the social norms or forms associated with males or females.' Robin then goes on to say that in the workplace, sex is not important. Rather, gender is. But sex does take primacy in the context of marriage, and medical care.

The reason for this is because when you get a job, the employer does not get you to prove your sex by testing your chromosomes or checking your genitals. So the term 'sex' in the equality act must refer to something other than biological sex when it comes to workplace discrimination, because employers simply aren't interested in your junk.
White then argues that social norms like separate toilets, sleeping accommodation and changing facilities are based on gender, not sex. And the gender pay gap is also to do with gender, not sex. White concludes "sex may mean different things in the registrars office, the gp surgery and the workplace. And in the workplace we may conclude that when we say sex we really mean gender."

Here are my issues with this.

1. The Equality act 2010 expressly defines 'woman' as a member of the female sex. It doesn't mention gender. So there is no reason to import the term 'gender' into the equality act. The Gender Recognition act 2004 uses sex and gender interchangeably, but that is no reason to apply this to the equality act.

2. The claim about the employer not testing your chromosomes is a straw man. The doctor or wedding registrar doesn't test chromosomes or inspect genitals either.In fact, there is no context where you have to prove your biological sex by getting a chromosome test. Sex doesn't need to be verified with an invasive test...it can be verified by looking at birth certificates (or just looking at the person.)

3. Robin is incorrect to say that separate toilets, separate changing facilities etc are differences imposed based on 'gender'. The real reason we have separate facilities is to protect female people (who are oppressed by male people) from sexual violence, and the male gaze. It is implausible to suggest that we segregate people based on how feminine or masculine they are. The true reason is sex based, and due to sex based oppression.
   Similarly, Robin's explanation of the gender pay gap is very strange. Why would socially feminine people be paid less than masculine people? The gender pay gap only makes sense when you realise that women are penalised for having babies or the assumption they will have babies...all linked to their sex.

As far as I can see, there is no reason at all to prioritise gender in the workplace over sex. Any thoughts about this?

What gives Robin the right to pontificate on how women should be viewed at work?

I think this is sometimes a tricky one. Imagine there is a university physics degree, where the undergrads are 80% male and 20% female. The university has a prize for 'best coursework' and year on year it is awarded to a male. So they introduce another prize for 'best coursework (women)' to ensure some recognition for women. One year, there is a TW on the course. She started the course as a TW and has been perceived that way throughout the 3 year degree. To that extend, she has experienced the same social barriers as the women on the course. And there are no physical barriers to performance, so body shape doesn't matter. And these are all young people age 18-22 with no parenting responsibilities, so pregnancy is not relevant.

Should the TW be in consideration for the 'womens prize'?

That is, if in this particular physics course, the only barrier to women's academic success is the social biases against them, then can we allow that the same social biases might apply to a TW?

When I told my boss I was pregnant he asked me if I planned to keep it! And then proceeded to make my life hell for nine months because clearly I'd done this to ruin the business

When DH told his boss I was pregnant he got a pay rise and an upgraded company car because they wanted to make sure he was ready to take on the responsibility of being a new dad.

I guess some people are oblivious to the realities of working life for some (lots of) women.

can we allow that the same social biases might apply to a TW?

Did this person go through all their under-18 schooling under a trans identity as well? It’s a clear-cut no if not.

And in fact, how does everyone know this person is a TW? If they’re widely known to be trans and not female, then it’s quite clear the same biases are not applied to them. Seems like a very simple “no.”

@TheWeeDonkey

How does this work for pregnant employees and new mothers?

Not to mention menstruating women, those going through the menopause, those for whom sharing bathroom spaces is triggering or culturally difficult, workplace visitors who are not aware of the workplace decisions etc.

The list goes on really doesn’t it, and the strange thing is the list of reasons only seems to impinge on women’s wellbeing, comfort and needs. Men’s well-being, comfort and needs appear to be entirely unaffected. Hmmm.

@parietal I genuinely don't believe the same social barriers do apply though, take a look for example at the Interview James Max had with Kelly Jay keen and the following day with Debbie Hayton, same opinions but the difference in the way James spoke to them was stark.

@parietal

I think this is sometimes a tricky one. Imagine there is a university physics degree, where the undergrads are 80% male and 20% female. The university has a prize for 'best coursework' and year on year it is awarded to a male. So they introduce another prize for 'best coursework (women)' to ensure some recognition for women. One year, there is a TW on the course. She started the course as a TW and has been perceived that way throughout the 3 year degree. To that extend, she has experienced the same social barriers as the women on the course. And there are no physical barriers to performance, so body shape doesn't matter. And these are all young people age 18-22 with no parenting responsibilities, so pregnancy is not relevant.

Should the TW be in consideration for the 'womens prize'?

That is, if in this particular physics course, the only barrier to women's academic success is the social biases against them, then can we allow that the same social biases might apply to a TW?

In what way do TW suffer the same social barriers as women in STEM? My experience is they are seen as extra special type of male and get taken more seriously. They also have very male sense of entitlement and none of the social barriers opinionated women face.

And the potential for pregnancy is relevant from when women reach child bearing age, it may not be as relevant at 18 as it is at 22 but it is most definitely a factor

This has made my blood boil.

@parietal

I think this is sometimes a tricky one. Imagine there is a university physics degree, where the undergrads are 80% male and 20% female. The university has a prize for 'best coursework' and year on year it is awarded to a male. So they introduce another prize for 'best coursework (women)' to ensure some recognition for women. One year, there is a TW on the course. She started the course as a TW and has been perceived that way throughout the 3 year degree. To that extend, she has experienced the same social barriers as the women on the course. And there are no physical barriers to performance, so body shape doesn't matter. And these are all young people age 18-22 with no parenting responsibilities, so pregnancy is not relevant.

Should the TW be in consideration for the 'womens prize'?

That is, if in this particular physics course, the only barrier to women's academic success is the social biases against them, then can we allow that the same social biases might apply to a TW?

The TW is still enjoying their years of male privilege (especially if they went somewhere like Eton) before university. This includes confidence in public speaking.

The TW does not have to face any of the following physical barriers that female students do:

-lack of female toilet provision in historic buildings used mainly by men for decades, ie having to queue for ages while the men have time to buy a coffee and network
-increased risk of sexual assault
-risk of pregnancy
-menstruation meaning more toilet breaks during long workshop/lab sessions

I work in a university STEM dept and none of our UG or PG prizes are sex-specific. We have tried to broaden the potential field of recipients by having awards for achievements like "greatest improvement in Year 2", "contribution to the department" (ie those who are committee reps or help with the student society), "oral communication", "project teamwork" etc as well as the traditional range celebrating prowess in theoretical and practical work.

The one and only reason White is arguing this is to remove female people's boundaries and abilities to separate themselves from male people, for male people's wishes and benefits to be with those female people whether or not female people consent, are unhappy, are negatively affected or are excluded altogether.

It's an exceptionally self interested and selfish agenda, and there is nothing in this for females. So no. No thank you. White can have third spaces until the cows come home. White is not removing female spaces from females for personal benefit.

Nonsense.

Looking at my own field (law) because those are the stats I am most familiar with, it is clearly sex that affects people's careers. More particularly bearing children.

Women represent more than 50% of the junior ranks in most law firms. But as they get more senior women get scarcer (around 20-30% at partner level in most firms). The drop off point is when they have children.

Women are discriminated against in the workplace because of their biological sex, not because they wear skirts and heels or other trappings associated with the female gender.

no

Women are discriminated against in the workplace because we are of the sex that falls pregnant. Not because we like dresses and glitter.

RMW doesn't face that discrimination because they're male and visibly a transwoman to anyone who comes across them.

Gender is how humans are oppressed. Sex is why.

I would like to know what a workable, legal definition of "gender" might look like when considering the following individuals:

-an ex-miner's wife in her 80s in the North East of England
-a butch lesbian social worker in her 30s living in a trendy part of London
-an Irish traveller girl who's just got married at age17
-Margaret Thatcher
-a British Chinese woman studying for a PhD in Civil Engineering at Cambridge

All of these are quantifiably of the female sex. How does the concept of "gender" apply to them? How is it helpful in any way?

From what I understand of their piece RW is arguing that when we are deciding who to treat as a woman it should be gender not sex that is important.
But leaving aside toilets, the point of a protected characteristic like sex is to ensure that women get fair outcomes when compared to men. - In essence its a safe guard against us being not treated the same as men. We are not asking to be treated like women, we are asking for the same opportunities as our male counterparts. - For a discrimination lawyer not to get this is really worrying
Now you could argue that sex based discrimination does not exist and it is all a prejudice against "femininity" but she needs to spell this out and justify this using empirical data
This makes me so angry. She is a discrimination lawyer and therefore should understand that the point of having a protected characteristic is to

Not rtft

But the reason sex is important is because it impacts on you and your working life. Particularly women - only the female sex can get pregnant and have pregnancy related absences and Maternity leave. Parental leave is for either sex. But there are physiological differences in the sex that do need to be acknowledged at work places and in employment law.

Gender doesn't make you have issues with your prostrate or require urinals, much like gender doesn't make you have periods or the menopause.

Sex matters. Sex bloody matters.

Such good points about menstruation, menopause, pregnancy etc all being incredibly relevant to women in the workplace. How is this to be accommodated under 'gender'?

I also appreciated the points about whether gender is something we should even be upholding anyway. Gender is very often oppressive to women. Should we really be organising our workplaces around the idea that women are irrational, or inferior to men in various ways? Why should we support the gendered role of women being passive and weak?

And while I appreciate Robin coming straight out and saying why they think gender should be prioritised in the workplace (even though I think the reasons are poor) I do also think that the fact that Robin is trans means Robin has a very strong vested interest in gender being prioritised above all else. This is an unfortunately blinkered approach.

I do not doubt that trans people have faced struggles in the workplace but they are not the same struggles that I have faced because of my sex. The fact that other people have suffered difficulties and discrimination is not a justification for removing our sex based rights and protections.

Only a non-woman could hold such beliefs.

Workplace discrimination is firmly sex-based, and mostly related to maternity. Anyone blind to this raw fact has no business even expressing their own ill-informed opinion. Let Robin educate themselves first.

I do not doubt that trans people have faced struggles in the workplace but they are not the same

Agreed, thankfully Robin has a specific protected characteristic in the EA which they can rely on to address any issues thats might arise. So why Robin wants to remove the only protected characteristic that covers all women - sex- is telling I think.

Naomi Cunningham of Legal Feminist: reviewed White and Newbegin's book 'A practical guide to transgender law' at legalfeminist.org.uk/2021/09/02/a-practical-guide/ and her comments include:

'The authors dismiss the binding judgment of the High Court in Corbett v Corbett [1970] 2 WLR 1306, apparently on the basis of the biologically illiterate claim that the existence of differences of sexual development undermine the distinctness of the categories “male” and “female”. This is unsupportable. Biological sex is an immutable and as a rule easily observable feature of human beings. In a small minority of those with certain rare DSDs, sex may be incorrectly observed at birth; but that fact no more undermines the male/female binary than the fact that individuals are occasionally prematurely pronounced dead undermines the alive/dead binary. As the Employment Appeal Tribunal has since pointed out in Forstater: “the position under the common law as to the immutability of sex remains the same; and it would be a matter for Parliament… to declare otherwise.” '

Which I think sums it up nicely. She concludes that 'If the objective of the book was to increase understanding of the law in this area, it must be judged an abject failure.'

I expect people to ge honest about their sex and guilty of deception if they lie
RMW argued a case for a transwoman (male) person to get maternity leave whilst the transman (female who had given birth) to go back to work. Ignoring that the female needs time to recover
RMW is no friend to women

Surely this is not the same Robin White who has said they have not altered their male (ie sex-based) voice because they rely on it for their work as a barrister?!