Lawyers have accused the Solicitors Regulation Authority of abandoning women after it was shown to have altered its Diversity Questionnaires to ask respondents to state their "gender identity" instead of their biological sex.
The SRA requires all regulated firms to record and report diversity data every two years by asking their staff to fill in its survey, with the intention of promoting social mobility and diversity in the profession.
Previously, the survey had sought to capture respondents' biological sex, but for its 2017 and 2019 Diversity Questionnaires, it asked instead, "Which gender do you identify with?". A follow-up question to capture specific data about transgender people asked, "Do you consider your gender identity to be different from your registered sex at birth?"
Lawyers on social media suggested that the omission of a specific question asking the binary sex of respondents meant that the SRA was not collecting effective data on women in the profession. They also argued that ‘gender identity’ was a regressive social construct which relied on people fitting into female and male stereotypes, and should either not have been used, or should have included a ‘none’ option. Referring to the Equality Act 2010, Emily Watson, a family lawyer, asked on Twitter, "Why does your diversity and equality questionnaire not monitor the protected characteristic of sex? Only one of the protected characteristics left out - are you not monitoring sex discrimination?"
Audrey Ludwig, the director of Suffolk Law Centre, asked, "If you do not keep accurate equality monitoring data how can you analyse trends on issues like pay gap and sex discrimination/incidents of harassment on grounds of sex? Did you do equality impact assessment of this decision?"
The SRA replied on Twitter, “it was felt that our previous approach, asking a binary question about biological sex, was not inclusive".
In response to further demands to explain its decision, the SRA said that in 2017, “after discussion & feedback on the issue from a number of groups and a short survey on social media” it changed the format of its survey to refer to gender identity, "which gave everyone an opportunity to answer".
A spokesman for the SRA admitted that the response to the online survey had been "limited", but said the 86 answers it received "helped inform our views on the best approach forward." The regulator declined to disclose which organisations it consulted about the changes. However, its website promotes the trans-child charity Mermaids and LGBT charity Stonewall, which advocates that anyone born male who identifies as a women, is a woman. The SRA confirmed it pays Stonewall £3,000 a year for training on LGBT inclusion and to promote itself as a 'Stonewall Diversity Champion'.
Lawyers and feminists asked why the SRA didn't ask about both sex and gender. "Sex is legally a protected characteristic", wrote Watson, "so you can't just replace it to be 'inclusive'. If you want to ask about GI, go for it - but as well as sex not instead. Many responses to your survey as is will give you no useful information about sex discrimination". Caroline Criado Perez, the author of Invisible Women: Exposing Data Bias in a World Designed for Men, agreed, tweeting, "I understand why orgs do this, they mean well, but less data is never the answer. Sex AND gender".
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The SRA told RollOnFriday that as well as wanting to be inclusive, it had not asked people for their sex "to avoid confusion" and "to help to monitor and promote gender equality in the profession". In Scotland, Stonewall objected to proposals for separate sex and gender questions in the Scottish census because it said doing so "would likely sit uncomfortably with trans respondents”. The SRA declined to clarify whether that was also one of its considerations.
RollOnFriday uncovered evidence that the changes have already resulted in the SRA making misleading statements about sex equality in the profession. When it released the results of its 2017 questionnaire, the SRA claimed that "diversity in the sector continues to improve" on the basis that "women make up 48% of all lawyers in law firms” compared to “47% of the UK workforce". However, it did not state that its definition of women included trans women. In addition, the 47% figure for the UK workforce was produced by the Office of National Statistics which, unlike the SRA, did not collect data based on 'gender identity'. Because 2% of the lawyers responding to the SRA's 2017 questionnaire identified as transgender, potentially only 46% of SRA respondents comprised biological women. As such, there was potentially a smaller percentage of biological women in the legal profession than in the UK workforce, not greater as many may have assumed the SRA to have claimed.
One female solicitor who asked to remain anonymous said the SRA's approach was "weirdly cavalier".
Another solicitor who also declined to be identified said, "Sex discrimination hasn't disappeared even if the SRA thinks it's old hat. On a charitable interpretation, it waved through this nonsense because it sounded progressive, and simply didn’t think about the impact on women of redefining them. Hypothetically, the profession could be 100% male and the SRA would report with a straight face that it was 60% female. It's disturbing that the regulator so casually abdicated its responsibility to monitor female lawyers' situation."
Watson told RollOnFriday, "The response from the SRA is wholly inadequate. It fails to justify why they have apparently reworded statute in the name of ‘inclusion’ and in so doing have effectively excluded a large number of women (judging by the response to my tweet) who don't want to have to accept an oppressive gender identity in order to let the SRA know that they are female."