Sex and gender: a simple foundational understanding

[BonfireLady]

I will shortly be going in to my daughter's secondary school to discuss my review of the PHSE materials. I reviewed different year group materials for age appropriateness as well as how gender identity is presented. Thankfully only a couple of issues, the most important (IMO) being the words sex and gender being used interchangeably when discussing stereotypes and traits.

I'd like to find the most succinct and least contentious way I can of explaining my understanding of the two. I may send this over email ahead of the meeting, or bring it along as a written document to share.

Is there anything key that's missing or that I've misrepresented? Ideally looking for feedback from anyone who identifies as transgender/non-binary as well as those that don't:

1. Everyone has a biological sex (male or female), which is observed and registered at birth and is a protected characteristic under the Equality Act 2010.
2. For a very small number of people (with Differences of Sex Development), sex observation at birth is difficult to ascertain and requires examination to determine. Sex (male or female) is then "assigned" and registered following the examination.
3. Some people have a gender identity in addition to their biological sex. This means that they have a sense of being male, female or neither. For example, they may identify as male, female, non-binary or another gender.
4. For some people who have a gender identity, this is more important to them than their biological sex when they describe themselves or wish to be described by others. For example, some biological women may request that others refer to them as men (or non-binary) and some biological men may request that others refer to them as women (or non-binary). This request may include a "preferred pronoun". If someone who has a gender identity is undergoing a reassignment (at any stage, including how they choose to present) from one gender identity to another, the reassignment is protected under the Equality Act 2010, meaning that it is unlawful to discriminate against someone for being transgender.
5. Some people do not have a gender identity, meaning that they do not have any sense of being male, female or neither. The belief that sex is binary (male and female) is protected under the Equality Act 2010, meaning that it is unlawful to discriminate against anyone who does not wish to describe biological men as women (or non-binary) or biological women as men (or non-binary).

Obviously there's a lot more I could say e.g. gender dysphoria, sexual orientation as a protected characteristic, same sex attraction versus same gender attraction but I feel these are the kind of things that are best explored in a conversation. The intention of the above is to capture the basics as a simple foundational start point.

Gender is what is in your head.
Sex is what's between your legs.

the reassignment is protected under the Equality Act 2010, meaning that it is unlawful to discriminate against someone for being transgender.
EA2010 talks about reassignment and transsexuals. It doesn't mention transgender. They should be undergoing a process (but the terms are very vague and woolly) to legally change sex i.e. obtain a GRC. You can only get a GRC if you are aged at least 18 (Gender Recognition Act).
So doesn't apply to schoolchildren though there could be an argument for telling them about it for information's sake.

Transgender is a result of belief in Gender Identity. It is protected under the 'religion or belief' characteristic, not the 'gender reassignment' characteristic, because of the ruling in Maya Forstater case. The same as belief in the immutability of sex is protected.
There is no "official certification" of being transgender so people can self ID, including schoolchildren apparently.

I think.
IANAL.

Stonewall define transgender as someone whose gender identity and sex are different [notwithstanding the fact that all genders are different from sex]. If you use them interchangeably, trans people can't exist.

I wouldn't send a long email. I'd ask them to confirm that they understand the difference between sex and gender identity, or whether their position is that they are the same. Keep it one or two lines.

DSDs are irrelevant. You'll confuse the issue if you bring that up.

The issue with "gender is in your head" is that it's not. It might be for some people that believe in gender ideology, but for the rest of us what's in my head is my brain. And my brain gives rise to my personality. I have had sex-based societal expectations pushed onto me from birth to varying degrees. My personality and experiences determine how much of those sex-based societal expectations I conform to, or not.

So for me, any explanation of why gender is not interchangeable with sex needs to reference the fact that gender relies on societal/cultural expectations. Whereas sex is simply a biological fact about your body.

For your point number 3 I would emphasize the belief element:

3: Some people believe they have a gender identity in addition to their biological sex. This means that they believe they feel male, female or neither. For example, they may identify as male, female, non-binary or another gender.

For your point number 4, rather than saying "for those who have a gender identity...." I would say "for those who believe they have a gender identity...."

For your point number 5 I would start with "Most people don't feel they have a gender identity. Those who do are a minority group".

I don't know if it is going off piste (PHSE) but you could mention that there are times when the difference between sex and gender is important and legally recognised i.e. single sex spaces (like school changing rooms!)

Yes, this is an important point to make. Some people believe they have a gender identity, just as some people believe they have a guardian angel, an immortal soul or a paranormal aura. ...

Some of us think - with good reason - none of these things exist, and we don't want our children to be told by teachers that they do.

Although teaching children some people think there are paranormal auras and gods and all the rest is generally OK, teachers must never be allowed to teach children that there actually are such things. This has long been accepted with regard to gods, devils, angels and so on. It must be applied in the same way to gender identity and other neo-spiritualities. (Especially if the teachers themselves believe in such things.)

Really important.

1. Tests would be done and sex would be determined, NOT assigned based on the appearance of genitals.

Sex is reality, gender is desire.

Also please be clear that, although "gender" is often used as a shorthand for "gender identity", it isn't really the same thing. For me, "gender" is the expectations or assumptions of how someone should, or does, behave/act/ skills/ desires etc based on their sex (or perceived sex).

As a female, I probably do have a gender - society assumes things about me because I am female - I can't do much about that. I don't think I have a gender identity though - I don't see that those assumptions have anything to do with me as a person, and certainly not enough to relate to as an identity.

Not trying to split hairs!

Agree with both PPs om the DSD point - scrap it. It's not relevant, and the bit about 'assigned' is wrong.

I'd keep it much simpler - sex and gender are not the same thing (and gender reassignment and gender identity are 2 more separate things). The basis, legal protections and implications of each one are distinct, so the words shouldn't be used interchangably.

Gender reassignment is just plastic surgery.
It doesn't change someone's sex.
A fake, non working penis doesn't make a woman a man.

Thankyou for point 2, I was beginning to think I was going a bit mad after our mandatory discrimination training a couple of weeks ago. I was told in the mandatory training video that sex is assigned at birth.

I thought "it's not though is it, it's observed".

It's been bothering me ever since, I'm in my probation period so don't really feel I can pipe up yet but we're a bloody LAW FIRM! Surely we're supposed to get his stuff right and if we can't, how can we represent clients who may be facing disciplinary action or worse for being GC.

Sorry to derail.

Thanks everyone. Some great points here. The key for me is that is non-contentious and not dismissive of the fact that there are people who feel differently. Since I got my head around it all, I've always thought about it as similar (ish) to religion. I don't believe in any god(s) but it'd be pretty inflammatory if I said "Science created the universe. God is in your head". When someone believes something, it is at the core of their thoughts and frame of reference. My belief that there is no god is no more important than someone else's belief that there is at a foundational level. Setting laws that are baked in belief and/or that belief needing affirmation from others are a different story.

I'll drop the DSD one. It can be talked around instead. I put it in because it inevitably seems to come up pretty early on but the nuances around why everyone is either (biologically) male or female are better off in conversation.

I had used the word "assigned" in quotes because that's the preferred term used by people who believe in gender identity, so trying to strike a balance. With point 2 gone, that disappears but after reading the exact wording of the Equality Act on gender reassignment... several times..., having previously only looked at the EHRC guidance (totally agree @senua that it's woolly!), I'm going to bring back the word "assigned" to help make sense of "reassignment". Rather unhelpfully, the EA conflates sex and gender on this point. So I'll make it clear that of those who believe in sex being "assigned", some people "reassign". The EA says nothing about it needing to relate to a GRC application though. The wording on that point is going to take some thinking about.

@Circumferences I like how you've used believe. That's how I was going to word it but I thought it may come across as dismissive. When I shared my written feedback (the meeting is to discuss my feedback) I said that I had reviewed it through the lens of whether gender identity is presented as belief or fact. My hesitation was that for a long time, I believed that I had a gender identity because "everyone knows if they are male or female. You just do". I've since realised, mainly through this board, that the only reason I know it is because it's a biological fact. How I feel and the "role" I play in my life are a combination of my personality and how I choose to go along with or push back on society's expectations of me as a female.

The audience at the discussion is slightly larger so my plan is to have an easy foundational reference for those attending. I think I'll print it out and take it with me to hand out.

Gender is in your mind.
Sex is in every cell of your body.

Regarding the protected characteristic (PC) of Gender Reassignment, the wording in the EA 2010 means that school children ARE covered if I understand it correctly, as it could be argued that they are 'proposing to undergo' gender reassignment.

However, it is important to be clear that the PC of Gender Reassignment means that a person can't be treated any differently to any other member of their sex class (unless they have a GRC which means they can be treated as a member of their legal sex in most but not all cases - but this doesn't apply to schoolchildren as they are too young to have a GRC)

In other words, the PC of gender reassignment doesn't mean that eg a boy should be treated as if they are a girl, but rather that they should not be treated differently to any other boy.

I like how you've used believe. That's how I was going to word it but I thought it may come across as dismissive.
No no no no no!! It's not dismissive, far from it.

a) the whole of the RE syllabus is "some people believe". They go on to explain what it is that some people believe. But the whole point of RE is "some people believe (corollary: others don't)".
b) it is a found principle in law, from the Maya Forstater case. People are allowed to believe in Gender Criticality, others are allowed to believe in Gender Identity.

As others have said, your OP is a bit wordy.
KISS and grab their attention. All you need is "some people believe".

@NancyDrawed makes a very good point, amd one that's widely misunderstood - under the EA the comparator is always sombody who is the same apart from the protected characteristic. You must not be treated less favourably (can, and sometimes need to be, treated differently - e.g. accommodating disability) than someone who is like you in all other respects. The ES doesn't give the right to be treated the same as someone with a different protected characteristic (or who is different in other ways, such as qualifications).

So a woman who has just qualified as an engineer can't be treated less favourably than a mam who has just qualified as an engineer. But can't demand the same salary as the CEO. A parent can't have less favourable annual leave terms than a non parent. A gay man can't be treated worse than a straight man. And a boy proposing to undergo gender reassignment must be treated as well as a boy who isn’t.; he doesn't gain the right to be treated exactly the same as a girl.

And there is no hierarchy of characteristics. The religious belief of a Muslim is as important as the sex of woman, the parental status of a father, the sexuality of a lesbian etc. Usually the rights and needs of someone with one PC don't clash with those of another. But when they do, there is no automatic right for PC A to trump PC B. You have to find a compromise that works equally well for everyone.

I am also not a lawyer.

I think that your point 5 is probably referring to Forstater v CGD? IIRC Maya argued from a position of lack of* *'religion or belief' (in gender ideology). So while a person cannot be discriminated against for holding a belief eg religious, nor can a person who doesn't share that belief. This is really important when it comes to Gender Ideology in schools and workplaces because it appears to be that believing in GI trumps everything else, so it is good to know that lack of belief in it is protected in law

Yes - all PCs work in both directions.

Having a belief is protected and not having it is protected. Being married and not being married have equal status as PCs. Being a man and being a woman both give the PC of sex.

You've given me some great food for thought on this one!
I think I'll say "gender identity, sometimes shortened to gender".

Personally I don't use gender as a word to describe society's expectations of me. I use "sexist stereotypes" or "sex-based expectations". One of the issues that I had with the PSHE materials was that there was a lesson section and slide called "gender stereotypes".

It blew my mind for quite a while that I was effectively agender or non-binary by some definitions... until the penny dropped that this is only the case if I believe that gender (identity) exists. I can't be agender if I'm "gender non-conforming and/or refect the gender binary" (in accordance with the Stonewall et al definitions) if I don't actually believe in gender. It's a bit of a circular reference. It was quite liberating to realise that I'd been grappling with how I was "gender confirming" in some ways and "gender non-conforming" in others. I work in IT, I have long hair and I am female... Does my career choice make me non-conforming or does saying that mean I believe IT belongs to men? What about all the women who have short hair but aren't making any kind of statement about being gender conforming or not?... In the end I decided it was the word gender that was the problem for me. At that point everything seemed a lot clearer. But obviously gender and gender identity are important for those that have a belief in it.

I'd even go so far as to say that I'm happy to accept that, for those that believe in gender (identity), there are 72 or more genders. I'm also happy to accept that someone would consider me "unsaved" and not amongst the 44,000 who will be saved on the day of reckoning because I am not a Christian.

It all comes down to how gender (identity) is presented: as fact or belief.

*and/or reject the gender binary

I can't be agender if I'm "gender non-conforming and/or refect the gender binary" (in accordance with the Stonewall et al definitions) if I don't actually believe in gender. It's a bit of a circular reference.
Circular reference? Say it ain't so. (that's sarcasm btw, in case it's a bit early for some people. Try asking Stonewall for a non-circular definition of 'woman')

RE people know all about 'theism' and 'atheism'. They should be able to grasp the idea of 'gender' and 'agender'. And society writes the dictionary, not Stonewall.

Correct. It was the Forstater case that I had in mind when I wrote that point.
But having seen the wording on the EA to describe gender reassignment I've got a bit more work to do to tidy it up.

I'm in danger of derailing my own thread here but if it comes up in conversation at school (e.g. toilet or changing facilities) there are lots of talking points that stem from this fundamental point. For example:

The judgement has so many interesting possibilities for future law. For example, if (hopefully when) the EA is clarified regarding the definition of the word "sex", it will presumably help to clarify that gender and gender identity are protected as beliefs. At the moment the ambiguitity has led to all sorts of wiggle room for misinterpretation, not least by the DfE in how gender and gender identity are taught in schools. Gender reassignment as a protected characteristic would still make sense because we are being asked to respect someone's right to follow their belief in whatever way works for them (within the boundaries of where it touches upon other protected characteristics - the key bit) and be free of discrimination for doing so. A bit like wearing a hijab to school, even if it's not part of school uniform, where a woolly hat would not be permitted. That impacts no other boundaries of anyone else's protected characteristic. Whereas using the toilet or charging facilities that "align with a person's gender identity" impacts everyone who doesn't have a belief in gender identity who is using those facilities. (If girls can get changed in front of people who identify as a girl, why would we bother providing sex-segrated facilities...? And of course some schools don't now.. and we're seeing the consequences play out because funnily enough not everyone has honest intentions.. which is why sex- segregation came in in the first place.. and so on)

It is so easy to get derailed because it can get very complicated. I think that is probably part of the reason why schools have been captured - they don't understand all the nuances so if somebody gives them a simplistic 'how to' guide they grab it (there is no prescribed National Curriculum for R.E., they have to write their own).

Stick to RE and "some people believe". Once you have that established then you can move on to other concerns in a different meeting. Are you aware of the Safe Schools Alliance?