Workplaces

Good employers promote diversity and inclusion, both to attract and retain talent, and to meet their legal obligations. There are nine protected characteristics in the Equality Act 2010 including sex, disability, religion and belief, and gender reassignment.

The law on sex discrimination protects both men and women. Employers must avoid discrimination on grounds of sex, and take action against sexual harassment and sex-based harassment. They must ensure that there is equal pay for equal work between men and women. They can treat men and women differently where it is necessary for privacy and dignity, such as providing separate toilets and changing rooms. Some jobs can be restricted to persons of a particular sex. Employers can take positive action: to address under-representation or disadvantage within the workforce, for example. Larger employers are required to publish and report specific figures about their ’gender pay gap’ (in fact: sex pay gap).

In order to protect against discrimination and harassment at work employers should should undertake reviews of policies, working practices and outcomes to remove unfair discrimination and bias. As part of this they should make sure that staff who identify as transgender are treated well, on a par with others, and with reasonable steps to accommodate particular needs.

What is the problem?

Employers are going much much further than this, adopting trans-specific policies which take an approach of “self-ID” for sex and disregard the needs and beliefs of others. They are adopting the idea of “gender identity” in place of sex and recording this instead of sex in their equality monitoring and employee records:

“Gender identity refers to a person’s internal sense of their own gender and what feels right for them. This might be male, female, non-binary, genderless, or some other gender identity.” 

Warwick University

Many large employers are members of Stonewall’s ‘Diversity Champions Programme’ which promotes this approach. As a condition of membership, specialist trans policies and programmes are rolled out, such as encouragement to start meetings with an announcement of pronouns, and replacement of “sex” with “gender identity” in equality monitoring. Staff are discouraged from disagreeing with the mantra that “trans women are women” and risk disciplinary action if they speak up against these changes.

In adopting this approach, employers refuse to acknowledge the different realities of female staff or clients and male staff or clients who identify as women (and vice versa), or the legitimate diversity of views and beliefs about gender identity and sex.

When it comes to providing separate-sex services either to staff, or to clients and customers, sex matters. When monitoring equal pay and the pay gap between men and women, sex matters. Being able to talk clearly about sex is necessary in talking about sexual harassment, and safeguarding. By enforcing the belief that sex is overwritten by gender identity, employers risk discriminating against other staff on the basis of sex, religion or belief and disability.

The case of Forstater v CGDE and others proved that a belief that sex is real, binary, immutable and important is covered by the Equality Act. Other legal cases are also reaching Employment Appeal Tribunals.