How to report the gender of a non binary employee

male or female?

Didn't find your answer?

Client has taken on a new employee that identifies as neither male or female and yet the payroll software insists we choose one.

Where do we go from here?

And what happens when the employee finds out I have reported them as being the wrong gender.....

 

Replies (54)

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By Ruddles
20th Feb 2024 13:51

Tell them exactly what the software says - "make your mind up"

Or invest in more sophisticated payroll software that offers a number of options, including "cat". Yes, seriously.

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Replying to Ruddles:
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By Yossarian
20th Feb 2024 14:39

Would a cat qualify for a personal allowance? Would it have to pay NI? Surely employing felines is a minefield.

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Replying to Yossarian:
By Ruddles
20th Feb 2024 14:52

Yossarian wrote:
? Surely employing felines is a minefield.

You're not kidding. Catflaps added to all doors, litter trays in the toilets ...

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Replying to Yossarian:
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By Paul Crowley
20th Feb 2024 16:26

Catastrophic

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Danny Kent
By Viciuno
20th Feb 2024 13:56

How would the employee find out what gender they are being reported under? I'd just pick one and move swiftly on without wasting any more time on it.

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paddle steamer
By DJKL
20th Feb 2024 14:12

Surely you just open up two employee records and use them on alternate months.

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By Sandnickel
20th Feb 2024 14:14

Ask them for ID (which client should have anyway for RTW) and use that to determine what sex to put.

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By DKB-Sheffield
20th Feb 2024 14:16

Does the payroll actually ask the question of "gender"?

I think the question (RTI) is "sex"?

There was a long thread about this about 3-4 years ago. I think the consensus was the latter... which is M/ F.

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Replying to DKB-Sheffield:
Richard Hattersley
By Richard Hattersley
20th Feb 2024 16:28
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Replying to Richard Hattersley:
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By DKB-Sheffield
20th Feb 2024 16:31

That's the one Richard. Thank you!

I remember it, having been quite wrong, and rightly corrected by Hugo!

It seemed much longer ago than 2022 though!

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Replying to Cat's whiskers:
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By Kaylee100
20th Feb 2024 15:13

Youve scared me now, thinking about the next AML update course.

That's a whole new level from having to stare into a Directors eyes to identify their colour for Companies House!

Many years ago we had a transitioning employee on a client payroll and we used their sex declared on their starter form until they produced any documentation otherwise. However on the payslips we redacted the Miss.

Other software we understood offered Mx as an option but ours didn't.

Luckily the employee didn't make a fuss once the Miss was redacted.

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By ireallyshouldknowthisbut
20th Feb 2024 15:11

its a serious question.

I would go with Ruddles initial suggestion, explain that your software is rather backward and only gives you two options.

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By Yossarian
20th Feb 2024 15:30

Could payroll software providers rephrase the question: 'Number of X chromosomes: 1 or 2?'

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By neiltonks
20th Feb 2024 15:36

For reporting to HMRC on the FPS it has to be 'M' or 'F'. Anything else will cause the FPS to be rejected, which is why payroll software tends to insist on M or F!

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Replying to neiltonks:
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By DKB-Sheffield
20th Feb 2024 15:55

neiltonks wrote:

For reporting to HMRC on the FPS it has to be 'M' or 'F'. Anything else will cause the FPS to be rejected, which is why payroll software tends to insist on M or F!

That's roughly what I was trying to refer to (badly).

Whilst pronouns may be changed or ignored in software, it's M or F for RTI (which should match the - most recently issued - 'birth certificate', unless post change of gender, pre-issue of cert, when the new cert should be checked). https://www.gov.uk/employee-changes-gender

Incidentally, the same applies to passports, driving licences, and bus passes.

Call it backward (only recognising 2 genders) BUT what is the alternative (bearing in mind it has to be 100% universally/ globally recognised/ accepted in some cases).

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Replying to neiltonks:
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By Yossarian
20th Feb 2024 15:55

I thought M or F meant Mammal or Fish? I've been dreading doing payroll for someone who identifies as a mermaid.

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Tornado
By Tornado
20th Feb 2024 16:02

My Tax Return software only offers a choice of two genders which, I am assuming, is in line with an HMRC Template.

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Richard Hattersley
By Richard Hattersley
20th Feb 2024 16:08

We have removed a handful comments on this thread. Please treat this topic sensitively and respectfully and do not post comments which are knowingly offensive. We will leave this thread open but we will be monitoring and moderating the comments.

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Replying to Richard Hattersley:
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By FactChecker
20th Feb 2024 17:08

Maybe an 'article' for someone at your end ... so that the facts are clearly laid out without the option for all the varied opinions (some humorous others less so) - you could start by summarising the points made in that thread from last year to which you've pointed people. For instance:

* You have to file an FPS every time that person is paid, and the FPS has mandatory data items ... one of which is Gender, which only has two 'allowable values'.
If the file has values for a person without either M or F in that data item, then the file will be rejected ... and the employer is in breach of the PAYE (RTI) regs.

* RTI technical guidance says you MUST show an employee's current gender (which is not necessarily the same as the old demand for 'gender at birth'), but there is no allowance for anything other than M or F. Fundamentally there is nothing in the appropriate legislation that copes with the fluid possibilities of what a person 'identifies as' (or indeed for how that may change).

* Gender is one of a number of data items that form part of an interlocked set of algorithms that are used to determine and cross-check the identity of a person.
It was originally included because it seemed unequivocal and immutable, which may no longer always be the case ... but there would need to be a lot of (expensive) work in govt systems if these algorithms (and their interaction with other central systems) were to be replaced.
This is the price (or one of them) that the British pay for refusing to allow the concept of a National ID for every person in the country!

You could expand on this with directions to the salient legislation, regs and RTI specs for those who care - but I suspect there's only those who want to know the facts ... and those who don't like them!

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Replying to Richard Hattersley:
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By paul.benny
21st Feb 2024 16:23

Credit for leaving the thread open.

Whether we like it or not, genders other than M/F are part of the world we live in today and rehearsing opinions for or against doesn't help the OP or any of us to deal with the impact when doing our job.

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By Ruddles
20th Feb 2024 16:20

An Englishman, a Welshman and an Irishman were in a bar ...

... and what a wonderful time they all had.

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Replying to Ruddles:
paddle steamer
By DJKL
20th Feb 2024 17:27

Yes, but they discriminated, where's the Scotsman?

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Replying to DJKL:
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By FactChecker
20th Feb 2024 18:04

I'm trying really hard not to make a causal connection between Ruddles' post and yours ... :=)

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Replying to DJKL:
By Ruddles
20th Feb 2024 18:46

DJKL wrote:

Yes, but they discriminated, where's the Scotsman?


Serving the drinks. The bar is in Edinburgh.
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Replying to Ruddles:
paddle steamer
By DJKL
21st Feb 2024 09:27

See, doing us down again, the Scotsman as the lackey serving his imperial masters. (And that is how the SNP will spin it, don't believe me, see the story re the Redcoat Cafe at the Castle)

https://www.scotsman.com/heritage-and-retro/heritage/edinburgh-castle-re...

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By richard thomas
20th Feb 2024 16:34

Para 10 of Schedule A1 to the PAYE Regulations (RTI return) requires the employer to give :

"The employee's current gender"

One might ask why HMRC need to know. What depends on it in this area?

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Replying to richard thomas:
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By FactChecker
20th Feb 2024 17:22

Ah, the old ones are the best aren't they!
Asking "why they need to know" a particular data item has got me thrown out of more meetings (and not just HMRC ones) than the number of invitations that most people receive to them in the first place.

But I allude to a partial answer in this case in my post above ... namely that it's one of many data items that are deeply embedded in the cross-checking/matching algorithms used by multiple elderly Govt systems when trying to ascertain whose records they are dealing with. Any 'glitch' in the automated processes pushes the records out of the main workflow (where they are occasionally looked at by newer algorithms but more commonly left to gather cobwebs in the hope of human eyes picking them out in some unmeasured future) ... aka the lost and found department.

It's a classic example of where the ability to stick nice shiny new apps on the front-end has as little practical impact on efficiency as would have resulted from hitching one of those new-fangled motor véhicules to the front of your horse-drawn carriage in order to reduce the load on the horses.

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Replying to FactChecker:
paddle steamer
By DJKL
20th Feb 2024 17:34

Maybe it is so they can, if deemed appropriate, readily reintroduce joint taxation of husband and wife- oops, can't be that as spouses can be whatever they wish to be, so frankly it is obviously something in there that is too difficult or costly to remove- they better get their act in gear as taxation of droids is not that far away (we can at least discriminate against them as they use electricity directly so are hardly sustainable)

Interesting thought, how far behind 2024 are HMRC , 5 years, 10 years, 15 years, 20 years, last century?

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Replying to DJKL:
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By FactChecker
20th Feb 2024 17:48

"how far behind 2024 are HMRC .."

To use one of my favourite analogies - a house:
- the foundations are late 20th century
- a lot of the infrastructure is similar but with 20 year-old partitions and services
- decorated reasonably recently but in a style reminiscent of 15 years ago
- most of whatever's been added since was of such poor quality that it has started to flake off (and in some areas is causing more damage than what it covered up)
... oh and, 'insulation/energy efficiency' - what's that?

The time for taking it back to the foundations or merely repairing the infrastructure has passed ... so is it just a matter of when 'it goes on fire' now?

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Replying to richard thomas:
By Duggimon
21st Feb 2024 10:08

richard thomas wrote:

Para 10 of Schedule A1 to the PAYE Regulations (RTI return) requires the employer to give :

"The employee's current gender"

One might ask why HMRC need to know. What depends on it in this area?

I would presume data gathering on the gender pay gap, among other large scale data harvesting routinely undertaken by the government.

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Jane
By Jane Evans
20th Feb 2024 23:39

This link shows the data that an employer may keep for an employee. It doesn't mention gender, so I don't know how this reconciles with the link above for RTI.

https://www.gov.uk/personal-data-my-employer-can-keep-about-me#:~:text=E...

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Replying to Jane Evans:
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By FactChecker
21st Feb 2024 00:09

Honestly?

1. the list is entirely about managing the data protection issues around 'personal data' within an employment construct (nothing to do with Payroll or indeed any other legislative requirements imposed on employers).
2. no doubt annoying to you and others, it fails to treat 'sex' and 'gender' as different data items - and you will see that 'sex' is on the list of items Employers can (indeed must) keep as data about their employees even without obtaining their permission so to do.
3. see point 1 - the requirements under RTI are extremely explicit and each employee record within an FPS *must* include a value of either M or F in the data item that used to be labelled Sex, but is now labelled Current Gender.
The actual instruction says: "Enter ‘M’ (male) or ‘F’ (female).
You must show an employee’s current gender on all RTI submissions."
Failure to do that will result in the record being rejected by HMRC (leading to the usual penalties for non/late-filing and worse).

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Replying to FactChecker:
By SteveHa
21st Feb 2024 09:26

FactChecker wrote:

2. no doubt annoying to you and others, it fails to treat 'sex' and 'gender' as different data items - and you will see that 'sex' is on the list of items Employers can (indeed must) keep as data about their employees even without obtaining their permission so to do.

The last time I answered that question, apparently, "sometimes" was not a valid response.

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Replying to SteveHa:
paddle steamer
By DJKL
21st Feb 2024 09:28

The correct answer was "On Tuesdays"

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Replying to Jane Evans:
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By DKB-Sheffield
21st Feb 2024 00:28

I think this may be a classic example of Gov.UK 'joined-up' thinking gone wrong.

In the prior link (mine) they refer to 'Gender', which AFAIK, is not the same as 'Sex' as referred to in your link. IIRC this was discussed on the old thread posted by Richard Hattersley (I've not re-read it though).

I would go so far as to say HMRC/ HMG are also confused with the terminology - or haven't updated all guidance correctly. Perhaps it's HMG's effort to portray inclusivity but... the reference to Gender (being M/ F) is IMO... incorrect.

The data field 11 for RTI is "Current Gender", yet again... AFAIK... there are multiple genders (not catered for in RTI), but the vast majority of the population are one sex or another (M/ F - catered for under RTI)... not all... allowing for intersex...but the vast majority.

My relatively recent passport states 'Sex: M', not gender. I am certain my last driving licence application asked my sex, as opposed to gender. IMHO if HMRC are asking for gender they are confusing the issue - particularly as gender is a relatively fluid term in today's society. HMRC should actually be asking for a person's "Current Sex".

Of course, I may not be correct in my analysis! I'm certainly not judging anyone who disagrees. I identify as my gender of birth, have never questionned it, and possiblly don't understand. However, 2 links to HMG perhaps suggest they don't either.

What is probably the better question on this thread is "why" HMRC need this info.

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Replying to DKB-Sheffield:
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By FactChecker
21st Feb 2024 01:06

Should you want proof that as you say "HMRC/ HMG are also confused with the terminology" ... take a look at https://design-system.service.gov.uk/patterns/gender-or-sex/ which is part of the 'co-ordination' of design standards within govt systems!

Frankly it was a mis-step when they changed the data item label (in an FPS) from 'sex' to 'current gender' ... you can imagine how they got there, but not why no-one pointed out to them what would be the result. Or more likely why despite someone pointing it out, they failed to listen.

As I mentioned above (in the 'why' sub-thread) the real answer is to overcome the natural British dislike of 'being a number' (shades of The Prisoner) and issue every person who has a right to exist in the country with a unique ID number.
I've always fought it (and managed to torpedo a manoeuvre by the Treasury that nearly brought it in in Osborne's time), but the truth is that if you really want comprehensive Digital systems to run everything and to inter-communicate seamlessly ... then it's the only way.
[Of course that won't stop Govt/Fujitsu/whoever from building bad systems - in which a single ID may become catastrophic for an individual - but that's a whole different story.]

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By Matrix
21st Feb 2024 07:51

HMRC needs this since state pension age is based on it. I don’t know if an employer is required to hold this information, maybe your client should seek HR/Legal advice so they handle it sensitively.

Basically you just need to know the gender/sex currently on HMRC’s systems so that you can enter it in order for the employee to be paid.

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Replying to Matrix:
RLI
By lionofludesch
21st Feb 2024 08:29

Matrix wrote:

HMRC needs this since state pension age is based on it.

Check that with the WASPIs.

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By Duggimon
21st Feb 2024 10:13

It's a very long thread here circling about the issue that could be solved if the box in which we enter M or F would accept M, F, or X. Given that 99.99% of employees on RTI would still be M or F it really won't make any difference to anyone other than the people who currently feel excluded by only having M or F available.

Perhaps a small simple change to benefit a small minority without harming anyone else is a sensible step to take, which is why it's spectacularly unlikely the government will do anything about it given that's not really their forte.

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Replying to Duggimon:
RLI
By lionofludesch
21st Feb 2024 11:55

Duggimon wrote:

It's a very long thread here circling about the issue that could be solved if the box in which we enter M or F would accept M, F, or X. Given that 99.99% of employees on RTI would still be M or F it really won't make any difference to anyone other than the people who currently feel excluded by only having M or F available.

Perhaps a small simple change to benefit a small minority without harming anyone else is a sensible step to take, which is why it's spectacularly unlikely the government will do anything about it given that's not really their forte.

Having put a fair bit of effort into coming up with some legislation to benefit this small minority, it's more than disappointing the a government agency can't cope with it.

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Replying to lionofludesch:
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By Tom+Cross
21st Feb 2024 12:29

'Having put a fair bit of effort into coming up with some legislation to benefit this small minority, it's more than disappointing the a government agency can't cope with it'.

I do hope that you're not surprised in any way, Lion. Most of our Government agencies, couldn't be trusted to put the bins out, safely.

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Replying to JCresswellTax:
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By Roland195
21st Feb 2024 11:11

Personally, and without commenting on my views on the subject (if I admit to having any) I feel that John has a valid concern in the aspect of his question concerning what happens when the employee finds out that the "wrong" box has been ticked?

The people who do have strong views on this subject do indeed seem to be utterly humourless about it so I can see with a forum for accountant's would steer clear of where angels fear to tread.

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Replying to JCresswellTax:
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By Tax Dragon
21st Feb 2024 11:19

JCresswellTax wrote:

Censorship at its finest on this thread. Humour out the window.

You should try living in Scotland!

Although isn't everywhere 'editing' history of late?

Stupid, imho - if there's one lesson to learn from history, it's that humanity needs to learn the lessons of history, else it will re-live that history. As we see daily in the news at the minute.

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Replying to Tax Dragon:
By JCresswellTax
21st Feb 2024 11:49

I am from Glasgow! :)

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Replying to JCresswellTax:
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By Tax Dragon
21st Feb 2024 12:01

Best get down the bar quick, I hear there're people from England, Wales and Ireland there having a whale of a time.

(Mind you, it'll be your round by now.)

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Replying to Tax Dragon:
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By FactChecker
21st Feb 2024 11:57

Words of wisdom ("lesson to learn from history").

Trouble is that those intent on re-writing history don't tend to be interested in the betterment of general humanity ... just their own parochial 'special interest' group.
This in turn becomes 'righting past wrongs' (often real, sometimes just perceived), to which gets harnessed a need to re-write history so that it would support that moral imperative.
All very laudable (at least in original intent), but quickly subverted by the nature of human beings (who prefer to be 'in the right' and 'winners not losers' ... and you can see the Trumpian behemoth hove into view, alongside those who'll be horrified at the company they keep)!

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Replying to FactChecker:
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By Tax Dragon
21st Feb 2024 12:07

That's obviously a reply to my history comment, not getting to the bar on time.

I think it's wider than special interest groups. One obvious example from the national news: Colston has been largely edited out of history (and he's far from alone). Have attitudes improved or worsened since, do you think?

[Sorry this might reflect only part of your comment, which you may have edited while I was typing.]

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Replying to Tax Dragon:
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By FactChecker
21st Feb 2024 12:22

Probably not the right forum (in its original sense) for this kind of discussion ... but "improved or worsened since" when?

Since the days of Colston the man - undoubtedly improved (not enough but there's *always* room to improve);
Since the days of his statue being toppled - debatable (on the plus side more open discussion but possibly outweighed by the stance-taking diatribes put forward);
Since the subsequent 'editing-out' (renaming the Hall, and so on) - who knows what tomorrow may bring (as the wise Sandy Denny put it)?

But back to what I took to be your opening salvo ... it's hard for me to conceive of any scenario where the sweeping away of all 'unacceptable' references to what actually happened in the past is any better than having someone decide what in today's News is deemed to have actually happened.
Putin is not alone in this respect - and as someone once observed (no time to look up the reference), the further the right-wing move to the right the greater the chances of them meeting the left-wing moving to their left. Or as my father, rather obviously, put it "Never trust an extremist, they're always more extreme than they'll admit"!

EDIT: apologies, yes I like taking advantage of the 'editing slot' to re-consider whatever I've just typed!

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Tornado
By Tornado
21st Feb 2024 16:27

According to this Government site, non-binary genders are not legally recognised in the UK.

https://www.gov.uk/apply-gender-recognition-certificate

You can only apply to be recognised as male or female. Non-binary genders are not legally recognised in the UK.

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Replying to Tornado:
By Duggimon
22nd Feb 2024 09:08

Non-binary genders don't have to be recognised by a Gender Recognition Certificate to appear on an RTI filing. You don't need a GRC to change the gender on the RTI filing from Male to Female and changing the RTI system to accept non-binary as a gender wouldn't necessarily require first changing GRCs to accept them.

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