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Non Binary employee

HMRC's starter form and current payroll software provider only have option of Male or Female

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A client has taken on a new employee who is non binary. The option is not shown on HMRC's form or the payroll software I use. The payroll software also requires me to 'choose' a title of Mr, Mrs, Miss, Ms, Dr. Has anyone else come across this issue, what have you done to solve it?

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By DKB-Sheffield
27th Mar 2022 13:46

Can you just leave the title field (Mr, Mrs etc.) blank? In general, I don't assign a title to any employees, for any client.

Regarding the M/F options, is there a "prefer not to say" option?

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Replying to DKB-Sheffield:
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By [email protected]
27th Mar 2022 14:20

No Option to leave blank and no option for 'prefer not to say'. HMRC's own form has a tick box for Male or Female. This is how it has come about as the employee didn't tick a box on the starter form.

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Replying to [email protected]:
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By MCV71
27th Mar 2022 14:24

You would have thought payroll legislation by now would have been changed to also have "Mx" (I think that's the term for that group?)

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Replying to MCV71:
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By thomas34
27th Mar 2022 15:17

Thanks - I've learned something today.

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Replying to MCV71:
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By waldron
29th Mar 2022 13:30

Are there not NI and pension implications dependant on their sex?

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Replying to [email protected]:
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By DKB-Sheffield
27th Mar 2022 14:43

Ah. Not sure then.

HMRC's starter firm - isn't that a sample because they had nothing to replace the P46? I certainly don't issue that and have my own version (that actually asks the right questions and is updated regularly).

Software - I don't know what software you use so couldn't really comment. May be worth asking the question of the provider... why? and how? I have known software *require* information that is sometimes no longer *required* by HMRC (i.e. I think the 'title' is optional). A number of years ago I trialled some software - had a client employee who was 'widowed' - it *required* the spouse's name).

Post which software you use, someone may know a workaround/ answer.

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Replying to DKB-Sheffield:
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By [email protected]
27th Mar 2022 15:10

Thanks, I think I will issue my own form, as you do, going forward. I use Brightpay and have logged a support question with them. I will update when I get a response.

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Replying to [email protected]:
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By Hugo Fair
27th Mar 2022 15:54

You can amend the Starter Form (or any other data collection paperwork) as much as you like ... but it won't resolve the point I've made below.

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.

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By Matrix
27th Mar 2022 15:27

Do they not have a P45? Have they not worked all tax year?

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Replying to Matrix:
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By [email protected]
27th Mar 2022 15:31

No 1st job since leaving education.

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Replying to [email protected]:
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By WhichTyler
27th Mar 2022 19:48

What documentation did they provide when the employer did their right to work check?

If passport, then copy that...

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By Hugo Fair
27th Mar 2022 15:40

"HMRC's starter form and current payroll software provider only have option of Male or Female"

All (not just your) software will only allow F(emale) or M(ale) to be entered in what is a mandatory data item for filing an FPS.
This is because that is what is demanded by HMRC's specification ... which is because the legislation doesn't allow for any 3rd (or 4th ..) alternative.

I've not encountered your specific problem, but you only have a choice between failing to include the person in the FPS (which is an offence) - or of picking one of the two values.

FWIW: the 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).

BTW ... "The payroll software also requires me to 'choose' a title of Mr, Mrs, Miss, Ms, Dr. "
This FPS data item is not mandatory, so if your software is forcing you to make a choice then that should not be necessary. And a much wider range of potential values would be usual in most software including n/a (or equivalent) and blank.

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By DKB-Sheffield
27th Mar 2022 15:45

Having quickly search Mx Google (who is certainly non-binary), I've found the following petition...

https://petition.parliament.uk/petitions/580220

Whilst it's dated 2021, the Gvt response may provide the answer. It seems, from first glance, that there are no current plans to introduce a third gender.

This was backed up on a different site I read (which was dated much earlier) which referred to SPA - there being no SPA for a 3rd Gender. However, the alignment of SPA for men and women sort of blows that argument out of the water.

As it stands, it would appear that the Gender for HMRC is that shown on the employee's birth certificate (which will be male or female)! The title however... I'm certain BrightPay would have the option to bypass that!

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Replying to DKB-Sheffield:
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By [email protected]
27th Mar 2022 15:55

As it stands, it would appear that the Gender for HMRC is that shown on the employee's birth certificate (which will be male or female)! The title however... I'm certain BrightPay would have the option to bypass that!

[/quote]

Update - BrightPay does allow you to leave this section blank

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Replying to DKB-Sheffield:
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By Hugo Fair
27th Mar 2022 16:26

As noted above, the RTI technical guidance states you MUST show an employee's current gender (not the gender "shown on the employee's birth certificate") ... although it provides no definition as to how that 'current gender' is ascertained (i.e. via a Gender Recognition Certificate or by self-identifying).

BUT it definitely makes no provision for any answer outside the two binary values.

Whatever reasons are posited for this, the truth is simple ... 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!

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Replying to Hugo Fair:
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By DKB-Sheffield
28th Mar 2022 14:18

Hi Hugo

I stand corrected on the M/F question.

I wonder how long it will be before an employer is taken to tribunal over forcing an employee to state a binary gender? An will that tribunal take place before HMG change the law? I'd put good money on a tribunal predating the law change!

Thanks again!

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Replying to DKB-Sheffield:
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By lionofludesch
29th Mar 2022 04:46

DKB-Sheffield wrote:

Hi Hugo

I stand corrected on the M/F question.

I wonder how long it will be before an employer is taken to tribunal over forcing an employee to state a binary gender?

It'll be never.

At least, not as long as the employer is legally required to do so.

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Replying to Hugo Fair:
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By girlofwight
31st Mar 2022 14:39

Just to make a factual correction to those comments @Howard.

"... although it provides no definition as to how that 'current gender' is ascertained (i.e. via a Gender Recognition Certificate or by self-identifying)."

If someone has a GRC then their birth certificate, and indeed everything afterwards from childhood vaccination records through exam results, school records, is amended. Legally there is no question of current v historic gender if there is a GRC, or indeed any suggestion there was everything but that mandated by the GRC.

Self identifying is more tricky, although until the well meaning but misguided consultations on reforming the Gender Recognition Act, was an understood position.

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Replying to girlofwight:
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By Hugo Fair
31st Mar 2022 16:40

Aside of being Hugo (not Howard), what is the 'factual correction' you're making?

As I said, it is the RTI technical guidance which states you MUST show employee's current gender (their phrase not mine). Presumably this means as opposed to gender at birth (if different) ... which is why I pointed out the lack of definition as to how that 'current gender' is ascertained.

A GRC has the effect you describe (for most but not quite all historic records) ... but I never suggested that "Legally there (was any) question of current v historic gender if there is a GRC". Indeed that is the whole point of the HMRC guidance - use the current (and hence valid) value, not whatever value may have been used in the past.

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Replying to DKB-Sheffield:
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By lionofludesch
28th Mar 2022 08:20

DKB-Sheffield wrote:

Having quickly search Mx Google (who is certainly non-binary)....

Au contraire.

I doubt if you could get anything more binary than computers.

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Replying to lionofludesch:
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By DKB-Sheffield
28th Mar 2022 14:24

Ah... 'tis true.

But then, I just asked Alexa and the answer was...

"As an AI, I don't have a gender".

Not sure about Siri or "Hey Google"

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Replying to lionofludesch:
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By Paul Crowley
28th Mar 2022 15:36

Good one
Prisons are also binary
Non binary is a mind set, not reality
I believe I am the best accountant in the UK (mindset)
others would disagree (reality)

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Replying to Paul Crowley:
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By JazzySasha
30th Mar 2022 10:02

Incorrect - prisons in the UK (and many other countries in the world) are NOT "binary" if by that term you mean single sex. There are dozens of men currently housed in women's prisons in the UK simply on the basis that they've "identified" as women, sometimes only at the point of arrest.

I'll leave you to decide for yourself why any man would want to do that....

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Replying to JazzySasha:
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By creamdelacream
30th Mar 2022 19:04

Yep, and plenty of the incidents you're alluding to have happened. The problem is if you disagree with it you're transphobic so most people stay silent on the matter.

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Replying to creamdelacream:
By Duggimon
31st Mar 2022 09:30

creamdelacream wrote:

Yep, and plenty of the incidents you're alluding to have happened. The problem is if you disagree with it you're transphobic so most people stay silent on the matter.

I'm going to have to assume you're taking a position firmly against rights for trans people unless you care to actually make a point about it instead of bringing it up and leaving implicit your suggestion that we ought to ignore anyone who is trans and gets convicted and imprisoned.

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Replying to Duggimon:
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By creamdelacream
31st Mar 2022 15:30

I think you have just proven my point

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Replying to DKB-Sheffield:
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By lionofludesch
28th Mar 2022 08:21

.

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Replying to lionofludesch:
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By carnmores
31st Mar 2022 17:26

is this a godwins law situation ? we will probably have lots of disagreements on here.
I read today that a male cyclist who has been entering womens' races cannot continue to compete until his testosterone levels are reduced to below the limit. this seems fair to the other cyclists

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Replying to carnmores:
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By creamdelacream
31st Mar 2022 18:06

That's nonsense. It's been proven there is still a massive advantage. Just look at Lia Thomas winning the swimming by 38 seconds, lapping other swimmers. Plenty more examples. Completely unfair to biological women.

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Replying to creamdelacream:
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By lionofludesch
31st Mar 2022 18:18

creamdelacream wrote:

That's nonsense. It's been proven there is still a massive advantage. Just look at Lia Thomas winning the swimming by 38 seconds, lapping other swimmers. Plenty more examples. Completely unfair to biological women.

I remember the fuss about Oscar Pistorius competing in the 100 metres. "Give the lad a go, good on him" was the general feeling until somebody pointed out that Oscar only took 22 strides to go 100 metres, whilst Usain Bolt needed 28.

At a disadvantage ? Probably not.

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Replying to lionofludesch:
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By creamdelacream
31st Mar 2022 18:38

If that's your logic why separate sports by gender at all? Just look at Lia Thomas on the podium compared to the runner ups. How can you say that was fair when you see that image? It's farcical and I bet most people know it but won't say it.

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Replying to creamdelacream:
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By carnmores
31st Mar 2022 18:24

That's a point of view and I hold to it, so often if you oppose certain aspects of these situations you are called a Nxxx.
I am completely with you on unfair competition I have 3 sisters, 2 nieces and 4 great-nieces its a subject we often discuss.
We are getting close to what you really think having been eliptical hereto.
Can you expand on biological women?

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By Wanderer
27th Mar 2022 16:45

Most software doesn't force you to choose a title.
BUT you have to choose a gender.
This is as per birth certificate until a new birth certificate is produced:-
https://www.gov.uk/employee-changes-gender
Alternatively there is the Gender Recognition Certificate which is recognized by HMRC:-
https://www.gov.uk/tell-hmrc-change-of-details/gender-change

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By Paul Crowley
27th Mar 2022 19:42

I feel sure the employee will accept the rules if he wants to be paid, get a driving licence or needs to go to prison
Alternatively ask for a passport as part of identitication.
Matbe UK education does not teach things that working people need to know

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Replying to Paul Crowley:
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By Eighties Kid
27th Mar 2022 20:46

Agreed. If the employer couldn’t pay them without the box being ticked then I would ask the employer to send the form back in the same way as if they hadn’t ticked A, B or C regarding other jobs. The employer could send Wanderer’s link if necessary.

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By frankfx
27th Mar 2022 22:10

'Sex at birth"

I have seen that term used on a blood testing site.

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Replying to frankfx:
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By carnmores
28th Mar 2022 18:16

not agreed. I accept that there are people who are for wont of a better term hermaphrodite. their sex at birth is determined by a doctor who has probably not been in position to make a fair determination

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Replying to carnmores:
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By creamdelacream
28th Mar 2022 18:22

Sex isn't determined or assigned at birth, it's observed. Yes you can have extremely rate instances of 'hermaphrodite' but you can have other deformities/mutations too but it doesn't mean we should build our system around the extremely rare.

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By [email protected]
28th Mar 2022 08:26

Brightpay response:
You can type Mx over the Mr/Mrs option in the employee's profile in the Employee section in BrightPay but per HMRC guidance they do require a choice of gender for the FPS to be accepted so this needs to be selected on an employee's profile in BrightPay.

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Replying to [email protected]:
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By lionofludesch
28th Mar 2022 08:56

Sam-AT-denby.org.uk wrote:

Brightpay response:
You can type Mx over the Mr/Mrs option in the employee's profile in the Employee section in BrightPay but per HMRC guidance they do require a choice of gender for the FPS to be accepted so this needs to be selected on an employee's profile in BrightPay.

Looks like your employee will need to pick one or the other until HMRC catches up with the world.

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By bernard michael
28th Mar 2022 09:36

Nothing - life's too short to worry about it just leave blank . How did you know this person was non -binary ??

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Replying to bernard michael:
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By lionofludesch
28th Mar 2022 09:42

bernard michael wrote:

Nothing - life's too short to worry about it just leave blank . How did you know this person was non -binary ??

Employee said so ?

Just guessing ......

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Replying to lionofludesch:
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By [email protected]
28th Mar 2022 09:58

Yes, employee told employer.

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By Duggimon
28th Mar 2022 10:00

Why on earth is gender a required data item for filing an FPS? Completely pointless and unnecessarily invasive data collecting on the part of HMRC, in my opinion.

Surely, under GDPR, they ought to only gather the data on individuals that is required for the operation at hand, which would be name, DoB, and NI number, possibly address though even that I don't think is required for the purpose of identifying who is in receipt of the reported salary.

Really if the system is working as intended, only the NI number is required and the rest is just for corroborative purposes. Gender is certainly irrelevant.

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By More unearned luck
28th Mar 2022 12:12

This discussion suffers from respondents being woolly about the meaning of ‘gender’ and are using he word in different ways. For example:

Hugo says: “All (not just your) software will only allow F(emale) or M(ale) to be entered in what is a mandatory data item for filing an FPS.

This is because that is what is demanded by HMRC's specification ... which is because the legislation doesn't allow for any 3rd (or 4th ..) alternative.”

If a question only allows for the answers M or F then the question is asking about sex even if the questioner is too embarrassed to use the word. It is not a question about gender.

DKB says “Whilst it's dated 2021, the Gvt response may provide the answer. It seems, from first glance, that there are no current plans to introduce a third gender.”

I have news for DKB there are more than three genders as the abbreviation LGBT and its expansions attest.

Sam is using ‘gender’ euphemistically: “As it stands, it would appear that the Gender for HMRC is that shown on the employee's birth certificate (which will be male or female)!”

I agree with Duggimon gender is irrelevant, but sex isn’t.

Perhaps the answer for the OP is to adapt the apocryphal response in Ireland to the claim that you are an atheist and ask: but are you male non-binary or female non-binary?

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Replying to More unearned luck:
Stepurhan
By stepurhan
28th Mar 2022 13:03

More unearned luck wrote:

I have news for DKB there are more than three genders as the abbreviation LGBT and its expansions attest.


L is women liking women
G is men liking men
B is liking both women and men regardless of your own sex
T is about feeling you are a different sex to the one you were born with.

So, of the letters you quote, only T has any indication of there being more than 2 genders. Even that originally only considered 2 genders, though it has expanded since.

If you're going to berate others for woolly thinking, best not to introduce woolly thinking of your own.

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Replying to More unearned luck:
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By bernard michael
28th Mar 2022 13:43

Or just not bother as it's not worth the effort

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Replying to More unearned luck:
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By DKB-Sheffield
28th Mar 2022 13:59

I agree... there ate more than three genders (albeit, you need to expand LGBT to LGBTQ+ to cover that. However, I was referring to the Gvt's response to the petition which states

"The 2018 GRA consultation did not bring forward any proposals to extend the GRA to provide legal recognition to a third, or non-binary, gender."

One would assume, as HMG do not intend, at this stage, to recognise a "third" gender, they would certainly not consider recognising a 4th (or subsequent) gender. They couldn't really go from 2nd to 4th, 5th etc. and miss out 3rd.

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Replying to DKB-Sheffield:
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By Mr_awol
28th Mar 2022 17:22

In fact, if you consider the dictionary (or medical dictionary) definitions, gender refers to a category of either male or female, by which a person is assigned by themselves or others. Gender = sex, effectively (as a fairly quick search has just confirmed).

The complication appears to arise because gender is commonly used to designate someone's gender identity. If you google how many genders there are, some might say two, there is a case for four (masculine, feminine, neuter and common) and then you get answers like, ten - or 72. At this point we are very much into the realms of gender IDENTITY with many overlapping and I'll be honest I'm not convinced all 72 (or 78 according to some) actually exist. For example 'cloudgender' which apparently means that the person’s gender cannot be comprehended or understood due to depersonalization and derealization disorder. I have quite some trouble accepting that one in particular.

Most of the expanded list of gender identities seem to be based on a combination of sex, sexuality, and even stereotypical traits. Stripping it back to what the form is actually asking for - which to put it very simply is your medical/legal/formal gender, i would have thought we could manage with just two, or three at the most (M, F and X, with X covering prefer not to say as well as those that do not feel they fall into either of the other two).

Some may see the above viewpoint as being old fashioned, insensitive or uncaring. If they do, though, maybe i can identify as 'tradgender' which means i can only see two genders - like colour blindness but with gender

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Replying to More unearned luck:
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By creamdelacream
28th Mar 2022 16:43

Agree with this. HMRC should just change the question to 'sex' instead of 'gender' as gender is basically meaningless these days. For example. if you're gender fluid, should the answer be changed on each submission based on how the employee is feeling that week/month? It all just gets a bit silly. Leave it at sex and move on

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