Help me with message to HR

[Yoursmineandours]

The company I work for is about to launch a DEI activity designed to capture data that will enable them to gain quantitative insights into the company’s DEI landscape. I have no issue with any of this, nor do I have any concerns about how the data will be collected, handled, stored etc.

However, they seemingly intend to ask questions regarding Gender, and regarding Gender Identity, but not Sex. The survey has not yet launched so I have an opportunity to challenge, but I am struggling with articulating one particular point. Can you help finish this sentence?

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Excluding “sex” as an option, but allowing for “gender” as well as “gender identity and expression” risks excluding those people who don’t …. Believe in gender? Care for gender stereotypes?

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Any wordage gratefully received.

Something like.....

Excluding "sex" as an option, but allowing for "gender" as well as "gender identity and expression" risks excluding those people who don't conform to traditional gender roles or norms, or who reject the concept of gender altogether.

SEEn in the city wrote to the FCA as part of their consultation and their letter is very good - you’ll be able to find it in their Twitter feed.

but in essence, sex is a protected characteristic and everyone has a sex. Gender identity is not and not everyone has one. They can’t monitor sex discrimination if they don’t collect data on sex and an employment tribunal might infer they don’t care much about it if they’re not monitoring it. I’d ask them why they think GI is a better measure and what will they use if for in the workplace?

Excluding “sex” as an option, but allowing for “gender” as well as “gender identity and expression” will exclude those people who hold gender critical beliefs, which are protected under the Equality Act as found in the Forstater v CGD Europe case

You might also find this info helpful: Personal data an employer can keep about an employee - GOV.UK (www.gov.uk)

I think the Equality Act and the nine protected characteristics are your friend here: it's not just you, the actual LAW says you should be mindful of these, you can't rewrite them to suit, and there's a growing body of case law that says companies who do end up in the cacky.

I would come at it from an equality act angle, are they also asking about race, sexuality etc? If so I would ask why this specific protected characteristic has been overlooked

Is it this letter? : Letter to Chancellor of the Exchequer - SEEN in the City

If they ask for gender identity then there needs to be an option to say 'none' or 'n/a'.

Yes @Leafstamp thanks for finding it

I hope they listen to your input OP, good on you for trying!

Thanks all - some good suggestions. I do intend to reference the EA and the importance of collecting data relevant to the nine protected characteristics (or at the the very least to not obviously exclude one of them.)

Off to have a look at the SEEN letter. Not sure if I am brave enough to invoke Forstarter.

Re Forstater, you could link to something that looks impartial, such as What does the Forstater judgment mean for employers? | theHRD (thehrdirector.com)

Or, perhaps just saying something about gender critical beliefs being protected under EA rather than quoting the case name!

It may be that they already have everyone's (legal) sex info on their HR records.

This is what my employer does and so doesn't ask for it in these kind of questionnaires. It might be worth checking in case they are doing the same.

Is there anything under GDPR? If they are collecting this kind of personal information for the purposes of diversity monitoring it should relate directly to the Equality Act. Sex is a protected characteristic, as is gender reassignment. But neither gender nor gender identity are.

Sex, and Gender Reassignment, are protected characteristics under the Act, so any quantitative analysis of DEI outcomes must surely include both these parameters.

I find it hard to believe that subjective gender will correlate strongly with any other measurables, but the question 'what is your gender identity, if not the same as your sex' would act as a handy check that they have understood the gender reassignment question.

Snap @WomanWithoutNeedOfPrefix !

You should query why they don't ask questions about sex. BUT HMRC records data on employees' sex and so your employer should have that data anyway. They ask for the rest because it isn't otherwise recorded. Doesn't mean they don't think sex is a protected characteristic. If they say they aren't collecting as it isn't relevant to DEI then use one of the other responses to follow up.

Our form says something like:

Do you identify as trans?

Do you identify as something other than your sex recorded at birth? If so, what is your gender identity?

And as I say, doesn't ask about sex because they already know.

Has anyone wondered about the Data Protection Act, companies cannot just go about collecting people's personal data. They have to have a reason why. So for sex it's about providing information regarding the pay gap to the government. Why do they need information about your gender or lack thereof and what are they going to do with that information

Thank you for all the suggestions. I am confident there is no ill intent, just that it has perhaps not been entirely well thought out. Without saying too much, sufficient assurances have been provided about GDPR and how the information will be used.

You can also ask them how they are reporting on the gender pay gap if they aren't collecting sex as a charachterisric.

However I suspect they may say they already have this data and the new surgery is additional information.

Do they already collect sex on a persons HR record?

Worth also pointing to the ONS and the census which you could label the gold standard of quantitative data collection.

They asked for both sex and gender identity.

@StealthMama Unfortunately government guidance tells companies to base their pay gap reporting on self-identified gender. You couldn't make this shit up. https://www.gov.uk/government/publications/gender-pay-gap-reporting-guidance-for-employers/preparing-your-data

Recording employees’ gender

It is important for you to be sensitive to how an employee identifies their gender. The gender pay gap regulations do not define the terms ‘men’ and ‘women’.

You should not single out employees and question them about their gender. To reduce the risk of this, try to use information employees have already provided, such as in HR or payroll records.

If this information is unavailable or unreliable, find a way to allow employees to confirm or update their gender. For example, invite them to check their recorded gender and update it if needed.

If an employee does not self-identify as either gender, you can exclude them from your calculations.
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So does that mean it excludes Non Binary persons ?

@Myalternate would that mean that companies, such as OPs, through these types of DEI questions, could also exclude employees who state that they do not have a gender identity at all? Talk about defeating the supposed object of gender pay gap reporting (why it’s called gender pay gap in the first place god knows).

@Yoursmineandours I would forward this link to HR https://osr.statisticsauthority.gov.uk/publication/collecting-and-reporting-data-about-sex-and-gender-identity-in-official-statistics-a-guide-for-official-statistics-producers/

This is guidance published by the UK Statistics Regulator earlier this year. It very clearly sets out that sex and gender are different and the importance of understanding what data you are collecting and the need for clear definitions so respondents understand the data being requested.

This is a document produced following the fuck up with the 2021 Census. It carries a huge amount of weight and in the UK should be the leading guidance on this subject.

Thinking about that - I know the phrase ‘gender pay gap’ has been around for many years (before the trans debate anyway).. should it actually be ‘sex pay gap’?