Financial services firms have been forced to pay hundreds of pounds in compensation to non-binary customers over “discriminatory” application forms, following a ruling by the Financial Ombudsman Service that risks undermining the primacy of sex-based data collection systems across the sector (Telegraph).
MoneySuperMarket (MSM), the comparison website, and Transunion, a credit union, were hit with separate complaints because their application forms did not include options for non-binary customers in their gender section.
Both cases were escalated to the Financial Ombudsman Service (FOS), an independent public body that resolves complaints between financial businesses and their customers, which awarded the complainants compensation for “distress and disappointment” incurred from the forms.
MSM was ordered to pay £200 to unnamed non-binary customer Mx B after she attempted to use the company’s price comparison website to obtain quotes for car insurance.
As part of this process, consumers are asked several questions and required to select from amongst the answers provided. One of the questions says “Are you:”, and provides the following answer options: “Male / Female”.
The company’s website did acknowledge the omission in an explanatory note and asked non-binary customers to “please refer to your sex/gender as outlined on your birth certificate or gender recognition certificate” when asking for quotes. The note also stated that it would not impact the individual insurance pricing offered.
According to the complaint, MSM argued that changes to their website are bound by the information their insurance partners ask for, and that many of them have not made provision for customers who identify as non-binary.
However, the ombudsman noted that “being non-binary is protected from discrimination under the protected characteristic of gender reassignment under the Equality Act 2010”. This statement isn’t correct.
The ombudsman’s ruling continued: “My starting point is whether they have been treated differently to any other customer who has a different gender identity. And, I think they have been.”
“I can see from what Mx B has told us that this did, understandably, cause them distress and upset. And that they were stressed and disappointed.”
Writing on X, Legal Feminist described this as “legally illiterate”, noting that the nonbinary customer has been treated in exactly the same way as every other customer, in being asked his or her sex, and that “there is no credible basis on which that could be said to be direct discrimination”.
Elsewhere, the ombudsman commented: “I’m also disappointed to hear the argument from MSM that they are not legally compelled to make provision for non-binary consumers. The important point here is that there is nothing to legally prevent MSM from making this provision.”
In a separate case, Transunion was criticised by a customer for not providing an Mx option, a title used for non-binary people in place of Mr or Mrs.
Unnamed complainant, Mx E, was awarded £350 from the company as they were unable to use their correct title when obtaining their statutory credit report online.
After numerous attempts to resolve the dispute, Mx E took the case to the FOS.
Transunion argued that the title Mx is not legally protected under the Gender Recognition Act 2004, and that therefore adding the title was not something they were legally obliged to do. They also said that, in their opinion, the title is viewed as a courtesy title only and many other UK lenders are not using it.
The ombudsman concluded that, despite Transunion changing their system to include the title Mx, the company did not make this update swiftly enough.
“Mx E has told us that the events surrounding the complaint made them feel they had to justify their non-binary identity and go through a process of ‘proving I exist’,” the ruling continued.
“As Mx E was not able to use their correct title, they were therefore being treated differently than a cisgender [sic] customer would have been in the same circumstances, purely as a result of their non-binary gender identity. This is not acceptable.
“It was (or should’ve been) foreseeable to Transunion that this was potentially offensive and distressing. Having listened to Mx E’s account, I’m persuaded that they experienced both stress and upset as a result of this matter.”
Following the FOS decisions, an industry source told the Telegraph that for many companies using legacy systems, it would be difficult and expensive to adjust their forms.
A spokesman for MSM said: “Many of the insurers and financial services providers that we work with have systems that currently only refer to a binary concept of gender. We’re actively working with our partners to make non-binary options available.”
Interestingly, in 2017 the FOS launched a new workplace trans policy alongside an accompanying statement that read: “Gender identity isn’t just binary – and this is something we think it’s important to acknowledge… [t]his policy helps people understand the breadth of gender identities.”
Five years later, the organisation was boasting about having achieved gold status in Stonewall’s 2022 Workplace Equality Index, a benchmarking tool for employers to assess their progress on LGBTQ+ inclusion in the workplace, which places particular emphasis on the need for gender-neutral language in communications, policies and documentation.
On which note, it’s worth remembering that when the barrister Akua Reindorf was commissioned by the University of Essex in 2021 to review the Stonewall-influenced harassment and bullying policies that led to the “no-platforming” of two visiting gender-critical law professors, she remarked that one of those policy documents was “misleading” because it “states the law as Stonewall would prefer it to be, rather than the law as it is”.
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