Badenoch steps in as trans row ignites over gender pay gap
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Civil servants have told employers to collect gender pay gap figures based on how their workers identify rather than their biological sex, The Telegraph can reveal.
All companies with more than 250 staff are required to report their gender pay gap as part of the Government’s aim to end the difference between salaries of both genders.
However, advice published by the Government Equalities Office (GEO), updated in March last year, encourages firms to collect information based on the gender that each employee identifies with.
It means the salaries of biological men could have been recorded as belonging to women, potentially skewing the data.
Kemi Badenoch, the Business Secretary, is understood to have pledged to intervene and is “looking very closely” at what can be done about the guidance to make it clearer that pay gap statistics are meant to record the difference between the biological sexes.
‘This compromises all data’
Dr Kate Coleman, the gender-critical campaigner, said collecting the information based on gender – and therefore lumping some biological men in with females – meant trends in women’s wages could go unnoticed.
In a letter to Mrs Badenoch, the equalities minister, she said: “Sex has a systematic effect on pay and this is why we should ask for this information, rather than any alternative.”
Speaking to The Telegraph she said: “I would say that this compromises all data reporting in this area, rendering it fundamentally unreliable. We see this in every sector.”
It comes after Mrs Badenoch issued guidance on the public sector equality duty, published in December, which said biological sex should be paramount and the Government issued guidance to schools telling teachers to presume that children cannot change gender.
Companies are required to tell the Government the average difference between the remuneration for men and women working for them, known as the gender pay gap. Last year, the gender pay gap among full-time employees stood at 7.7 per cent.
People who do not identify as either gender can be excluded from the data.
The deadline to provide data to the Government is March 30 each year, for most public authority employers and April 4 for private, voluntary and all other public authority employers, meaning the updated guidance could have impacted last year’s data.
‘GEO guidance should be corrected’
Gender-critical campaigners say women are discriminated against in terms of pay because of their biological sex, not because of assumed gender.
Dr Coleman, director of Keep Prisons Single Sex, said the GEO’s guidance does not tally with Ms Badenoch’s previous guidance.
“The GEO guidance is based on an incorrect (and frankly perverse) interpretation of the gender pay gap regulations,” she wrote.
“We strongly recommend that GEO guidance is corrected to ensure that the protected characteristic of sex (as registered at birth) is used as the basis for gender pay gap reporting as this will be consistent with your updated guidance and with relevant regulations.”
A source close to Mrs Badenoch told The Telegraph: “We are constantly finding this sort of stuff buried in Whitehall guidance and regulations. We’re glad Kate has brought it to our attention and we’re looking very closely at what we can do about it.”
Dr Coleman said she would also like to see the term “gender pay gap” replaced with “sex pay gap” to make it clearer what type of information is required.
“This is clearly what the Equality Act 2010 intended to be measured,” she said. “‘Sex’ is the protected characteristic, and ‘gender’ is not defined in either the Act or the regulations.
“In the context of the Gender Pay Gap, in both instruments, the word ‘gender’ is used as a synonym for ‘sex’ and this fact has helped to create and perpetuate misleading statutory guidance.”
Employers urged to be ‘sensitive’
In December, Mrs Badenoch wrote to public bodies urging them to collect information by biological sex and not gender.
Despite this, the GEO guidance for employers says: “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.”
Previously the advice highlighted that it was important to be sensitive but did not encourage companies to seek out more information to find out the self-identified gender of their staff.
Dr Coleman said: “Implementation of our recommendations would be another step towards restoring trust, not only in official statistics, but also in government.”
The founder of SEEN in the City, a sex-rights organisation for the financial services sector, said: “The word gender is sometimes used by employers to mean sex and sometimes to mean gender identity.
“This is confusing and leads to inconsistency. We need accurate data on the pay gap between men and women based on sex to ensure employers accurately identify the issues impacting women’s pay and progression, develop initiatives to tackle these issues and measure progress.”
A government spokesman said: “Individual organisations are responsible for the accurate collection of data in relation to their own employees.
“Gender pay gap regulations allow employers to report using their own data in order to make the process as simple as possible.”
