Pronouns: Compulsion and Controversy

BBC employees are being “encouraged” to put pronouns at the end of their emails and we look at the possible issues here. Is that a kindness that  only a misanthrope could oppose, or is there more to it?   

Compelled speech

The first issue is that of compelled speech. Pronouns are not neutral. The move towards declaration of pronouns presupposes that everyone “has pronouns”; which is to say that everyone has an inner gender identity, and being described by the pronouns he / him, she / her, they / them, zie / zem, or something else is an expression of that identity. It also suggests that there may  be repercussions for failing to remember a colleague’s preferred pronouns. 

This is a highly political position. At the moment, the law recognises two sexes (male and female) through s.212 Equality Act 2010, and that a person can change their legal sex from one to the other by operation of the GRA 2004. There is also established case law which recognises that a person’s gender can be central to their private life protected by Article 8. The law does not lay down that a) everyone has a gender or b) that gender is innate.

The concept of gender identity entered the legal lexicon with the Yogyakarta Principles. These Principles do not carry legal force, but have often been adopted as a convenient shorthand. They were drafted in response to global discrimination and persecution of LGBT people. The definition given of gender identity is this:

We can see two things from this: first, that it assumes that each person does have a deeply felt internal and individual experience of gender. Secondly, that it rather correlates to the Equality Act definition of gender reassignment, envisaging a process which may include medical modifications, rather than a simple declaration. 

But the more commonly used definition in the UK is that provided by Stonewall through their training. You can see that Stonewall depart from the idea of reassignment altogether (it is described as “a term of contention” in their glossary). Here are their definitions of gender and of gender identity:

What does this mean? Three things: a) that everyone has an “innate” sense of gender; b) that “culturally determined” masculinity and femininity is innate to males and females; and c) that those who reject their culturally determined gender are at odds with their sex, while those who embrace it are aligned with their sex, and are “cis.”

This is a political, and controversial, perspective. There are many people, male and female, across the political spectrum, and across sexual orientations, who regard it as problematic. It is a particular issue for those women who reject culturally determined femininity as oppressive and sexist, and for whom the idea that it is innate to most women – and by extension, that for those to whom it is not innate are not fully women – is nothing more than reinforcement of harmful stereotypes. 

It is from the belief that gender is innate that the drive to announce one’s pronouns stems, because pronouns then become an expression of individual gender rather than a convenient linguistic replacement for a proper noun. 

Insisting that employees put pronouns into their signature therefore leaves women who do not accept innate gender theory in a dilemma. They must either comply,  aligning themselves with a political position they disagree with;  or else reveal their political views in the workplace, which carries  a risk of adverse consequences. We know that the popularity of innate gender theory means that those who take the contrary view may be visited with vile abuse, reported to their regulator, complained about to their employer, or even fired – so a woman who opposes innate gender theory may nevertheless feel obliged to comply through fear of losing her employment or being socially ostracised.

Some will suggest that this is acceptable – that to reject the notion of innate gender is so repugnant that those who do so must expect to face adverse consequences. They may point to EJ Tayler’s judgment in Maya Forstater’s case that gender critical beliefs did not qualify as a protected characteristic under the Equality Act 2010 for that reason.  There are two answers to that. The first is that a first instance employment tribunal judgment has no weight as precedent, and this particular judgment is under appeal, and seems likely to be overturned. The second is that there is a great difference between disciplining an employee or treating them adversely because they voluntarily express opinions that they know to be controversial on the one hand, and forcing employees to sign up in public with a political statement that they may find profoundly objectionable. 

A belief that gender identity is innate may also be quasi-religious; the concept that each of us has an inner being, a soul, which is gendered, contained inside the mortal flesh which has a reproductive sex that may not match that gender. As the MP Layla Moran said, “I believe that women are women…. I see someone in their soul and as a person. I do not really care whether they have a male body.”

It has long been held that the freedom to believe is matched by the freedom to disbelieve, not just for outright atheists but also ‘sceptics and the unconcerned;’ as per §31 of Kokkinakis v Greece (1994) 17 EHRR 397:

“As enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”

Freedom to disbelieve in the context of political, not just religious, scepticism was considered in RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38. The Court commented that “As regards the point of principle, it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs…. One of the hallmarks of totalitarian regimes is their insistence on controlling people’s thoughts as well as their behaviours.” The Appellants, who were politically indifferent, were protected as they could not be expected to assert loyalty to the Zanu-PF regime in Zimbabwe against their true views.

RT (Zimbabwe) was cited in the more recent case of Lee v Ashers Baking Company Ltd & Ors (Northern Ireland) (Rev 1) [2018] UKSC 49 (often described as “the gay cake case.”) The bakery could not be compelled to ice a message “with which they profoundly disagreed” onto a cake. It is difficult to see how an employee could be compelled to align themselves with a perspective with which they profoundly disagree in their email signature.

Sex Discrimination

The next issue is whether a female employee encouraged or compelled to declare pronouns could legitimately argue that this discriminates against her, directly or indirectly, because of her sex. 

We know that sexism in the workplace is far from over. Conscious or unconscious bias operates against women. This example, from 2017, illustrates the point: when Nicole and Martin swapped email signatures, they learned that “Nicole” would be perceived as far less competent than “Martin” by clients. Without that sexism, if Nicole truly had been less competent, she would still have been regarded as such when signing off as Martin – and yet that is not what happened. 

In 2019, the Royal Society of Chemistry undertook an analysis of gender bias publishing in the chemical sciences. It recognised that biases were “subtle” and could be “inadvertent.” Women were invited to review less often, their work was more harshly received, their initial submissions more frequently rejected. These “small biases” led to a “significant cumulative effect.”

The RSC are not the only organisation to have done such research. Others have found similar results, and of course there are numerous articles spanning the last decade or more which find that CVs with a female name get poorer results than the same CV carrying a male name. CV writing services recommend against including gender on the CV – a practice which used to be common and is now recognised as archaic. Race is also a factor – although for now at least, nobody is suggesting we declare our race at the bottom of email signatures.

And it is not just the recipient of the email who may be unconsciously biased against a female sender. The female sender herself may be subject to ‘stereotype threat.’ This is where a person is reminded of membership of their group and then under-performs; for example, women who were told that women do worse than men in maths tests then really did perform significantly worse in a maths test than women who were told there was no difference in performance (Cordelia Fine, Delusions of Gender, p.32-33). Even being reminded of one’s own sex at the beginning of a test can have the same effect (ibid, p32). 

It would seem that women who are compelled to declare female pronouns in their signatures may be vulnerable to stereotype threat and also to unconscious bias on the part of the recipient of the email, thereby entrenching those biases further. 

This does not mean that any woman whose workplace initiates a pronoun policy has an automatic, unassailable, claim. An employer might defend the claim by arguing that they are aware of the negative impact on women but that it is justified as a proportionate means of achieving  its legitimate aim of trying to create an inclusive work environment. Argument and evidence would then centre on balancing the potential harms and benefits of the policy. It would be relevant, for example, if the employer was already struggling with recruitment and retention of women, or if there were a male / female disparity in sales commission. The ‘compelled speech’ aspect of the policy would also be relevant to this balancing exercise. 

Summary

It should go without saying that if an employee is beginning gender reassignment and wishes their colleagues to use a different pronoun for them, they should be supported to do so. There are rightly prohibitions on victimisation and harassment on the grounds of gender reassignment. That person may wish to send an email round-robin with their news, or may wish to have their pronouns in their email; an employer should not prevent that. However, when the BBC’s guidance suggested that all employees should put pronouns in their signature, and said “It’s really simple,” that was, we suggest, premature, and may be experienced as coercive. And when they speak of “creating a culture where everyone feels comfortable introducing themselves with pronouns” they should also consider whether they might be inadvertently creating a culture where those with the she/her pronouns experience discrimination as a result of their sex. 

13 thoughts on “Pronouns: Compulsion and Controversy”

  1. Please be aware it is not just the BBC who are asking staff to add pronouns to their emails. Other Stonewall Diversity Champions are doing this.

    Along with pronouns on emails they are asking staff to announce their pronouns in meetings before speaking. They are also changing ‘sex’ to ‘gender identity’ in documentation.

    Pronouns are just the tip of a huge iceberg that Stonewall and the trans gender agenda has created to remove women/girls rights.

    1. It’s now happening at my engineering consultancy. I am upset and frightened by this very quick takeover of even construction and engineering.

  2. I quit my lesbian choir over this issue. We were sternly scolded and told there would be consequences for non compliance. We were rehearsing in a church and the comparison between gender ideology and religion was not lost on me. I walked out, pretty upset.

    1. Fantastic article . Jo Meyerston sounds like you have a sex descrimination claim against your former choir .

      1. I am grateful that you wrote this piece, legal feminist. At my workplace, more and more people are including their pronouns in their signature. I understand the value of doing so to destigmatize pronoun identification in support of people who are not or do not identify as cis-gendered and to be respectful of people for whom gender is important to how they identify themselves. In my context, there is no requirement yet that has been communicated to staff to identify their gender. I do feel, however, that there is an unspoken social pressure to do so and that creates anxiety for me because of the points you identify, in particular privacy and enhancing still-existing discrimination toward women. At some point I will have to bring this up with my manager, I fear, because not identifying my pronoun may suggest that I harbour negative sentiments toward people who are not or do not identify as cis-gendered when my actual deep discomfort with this signature trend is that I do not wish to bring attention to my gender or other characteristics that have been treated in law in my jurisdiction as characteristics against which discrimination is illegal. Basically, I have spent my adult life acting in ways that aim, mostly but not always successfully, at being treated as a human being as opposed to as a female of a certain ethnic and cultural background (though caucasian so I can go unnoticed in a number of instances), I feel that these elements of my identity are a vulnerability that has been and can be used to treat me in a discriminatory fashion, and as a result focusing attention on my gender in the workplace simply gives me the creeps; the possible next step of having to identify one’s ethnic, cultural, religious etc background would be equally abhorrent to me, though we are obviously not there yet. As long as there is openness to people identifying or not identifying these pronouns, with no social, policy or legal coercion, I think we are fine, but as soon as there is the slightest hint of coercion even through some form of social conformism, I think we are entering the type of dangerous socio-political territory that we have tried so hard to move away from in the 20th century in liberal democracies.

  3. Is it really correct that a person can be forced to use the pronouns directed by a transitioning colleague, as you say in your last paragraph?

    It doesn’t ‘go without saying’ for me. I am autistic and unable to process language that is radically different from what I see.

    1. I should have been clearer – the “goes without saying” is that the employer must support the employee to make the request. I think the employer is duty bound to ask all employees to use preferred pronouns, but should make reasonable adjustment for your autism if you can’t.

  4. If a person has got a GRC perhaps they are protected and so pronouns may effectively be compulsory. But surely for anyone self identifying there it is only social stigma and perhaps HR policies insisting on people using a person’s requested pronouns? What if as a gender atheist I used ‘they’ to not lie but not cause offence?

  5. I’m somewhat surprised at the conflation of “compelling” in the sense of a government/the law compelling something under threat of penalty, vs. an employer compelling something under threat of employment discipline.

    You are quite right about compelled speech when it comes to government/the law, and yes, Ashers is a very relevant case. However, no BBC employee is under threat of a discrimination tribunal finding against them for refusing to include pronouns in a signature (let alone actual persecution as in the RT&Ors case). Instead, you are talking about an employer requiring something by what might, at worst, be a disciplinary process.

    But compelled speech at work is a routine thing, starting with the norms of speech that cashiers or fast food workers are trained (I’d call that “drilled” sometimes) to adhere to.

    So what is your basis for applying a “compelled speech” angle specifically to employment law, where civil (let alone criminal) repercussions are not threatened and only a work disciplinary consequence can ever happen, assuming the worst?

    You mentioned the Forstater case, and I agree it is not relevant here as Maya Forstater was an activist, while work rules apply to people who are not activists. However, another recent case, Mackereth, specifically dealt with “compelled speech” at work – and it was even about pronouns, too. I understand that Forstater is for some reason much more in the public eye, but I think Mackereth is more applicable in daily work life. Just how many activists, on any side, even are there? Most cases of workplace dispute would be about daily harassment such as Dr Mackereth’s.

    Moreover, the Mackereth decision specifically says that even Mackereth’s “wider views” are not protected in this instance by failing the Grainger test – that part refers to religion (in this case Christianity) and is far wider than trans issues. For example, a teacher at school might be validly compelled to refer to a pupil’s same-sex parents as parents, the teacher’s religious views to the contrary notwithstanding. And this would again be “compelled speech” and still legitimate.

    So to summarize, I kinda don’t see the ground for your compelled speech theory as applied to employment, and I would suggest you may not have covered a directly relevant case.

    Having said that: your other point, that for women the reinforcement of “she/her” in signatures might exacerbate unconscious biases against them, might have merit. I personally don’t think it would stand in court. But it might, in my opinion, be a good position to present to HR, and wider if necessary, for those refusing to put pronouns in their signatures. The advantage here is that this point has nothing at all about trans people and, thus, does not fall anywhere near the Forstater or even Mackereth case. Of course, for anyone who does have preferred pronouns, work can still require their use.

    1. I am not the author of this piece but am a discrimination and employment lawyer. There is a subtle but crucial difference between the Mackereth case (whereby the employee wouldnt agree to refer to others by *their* chosen pronouns) and this scenario (requiring staff to make a declaration to identify pronouns to which *they themselves* identify). The latter is widely recognised as consistent as accepting a belief in gender identity theory (which many reject), so it means that the employer is requiring staff to show their own adherence to a philosophical belief they dont hold (or even a form of proselytizing). Employers of fast food companies can require their staff to say “have a nice day” but not “God is great” or the philosophical non-theist equivalent. Hence why the cases cited in the piece are relevent even in employment context

  6. I’m a bit perplexed and hope someone can help me understand.

    In a work environment I’m interested in if someone is good at their job and/or is a nice person, or otherwise (acknowledging that neither are fully objective and could have many pitfalls but that’s a different topic). I expect others to take a similar approach (acknowledging some don’t).
    My first question is – Why would I want anyone/everyone to know my gender identity and why would I care if someone inadvertently used an incorrect one for me, an imprecise one or simplistically reduced pronouns to the 2 most common ones that happened to be incorrect/imprecise?

    I don’t, but I can see that a (or another – I choose not to share) noncis person may feel a need to be addressed as whatever they identify as, perhaps a) to validate themselves or b) to take a stand against what they perceive as casual disregard for something important to them. I can also see that they may feel a need to hide it because of c) feeling forced to conform to something and that may cause anger and a reaction. I can also see they d) may wish to not share with some people in their lives they care about (I’m thinking for example grandparents) and hide it in in a work environment so the information doesn’t propagate. I can also see people either e) hiding it or f) putting it front-centre of their interactions in response to other people being hurtful. I’m sure there are many more situations.
    Introducing a pronoun policy for email signature blocks would therefore support people in a), b) and f), may exacerbate c), be worse for d) and e) and may cause some of them to migrate to c). And as I mentioned, I’m sure there are many more nuanced situations where it may help or harm.
    My second question is – Since such a policy can either help or harm depending on the situation, why would anyone consider making it a policy, either mandatory or to ‘encourage’ it?

    For someone to decide to put their pronouns in their email signature block ‘in support’ knowing from the above that it may cause harm, they would need to have numerical evidence (otherwise it’s just guesswork) that the help was much greater than the harm, and ii) that the harm element was ‘acceptable’. That doesn’t seem to me to be straightforward and without the data, it would just be a decision based on hope.
    My third question is – So why would anyone do it without the data and thorough analysis?

    If someone says something deliberately hurtful to someone else (including me), directly or by subtle expressions of an inner aggression or bizarre bias, or is discriminatory then I’m very not ok with that. It doesn’t matter whether the hook they put that behaviour on is shoe size, gender identity, skin colour, height, religion or anything else – they are all equally ridiculous, equally childish and equally not ok – the amount of hurt caused is the only really relevant thing.
    The fact that there are apparently so many people who do behave in these ridiculous, childish and not ok ways is a sad indictment of the human race. If as a set of global communities we are to counter such behaviour, we’ve got to think through the possible pros and cons and unintended consequences of anything we introduce, get data and do the analysis before introducing it.

    My fourth question is – Are people, companies, institutions, thinktanks etc, introducing this policy to tick a box and follow a trend (or create a trend) or have they done the deep data gathering and deep statistically significant analysis focused on reducing people’s hurt, the only thing that actually matters?

  7. ps: the article makes several points citing ‘woman’ or ‘female’ something yet exactly the same logic applies if ‘woman’ is replaced by ‘man’ etc, so why make the distinction. Surely that’s stereotyping and it should instead be ‘person’.

    There is the phrase ‘…that to reject the notion of innate gender is so repugnant…’. Followed by an exposition and 2 answers. My view is much more basic though, on the face of it the statement is just a bit silly not really deserving an answer as if it were meaningful, the response should be ‘where is your evidence and rationale for it being repugnant’ and if they fail to produce real evidence there is nothing further to talk about. Note there can’t be any evidence because the statement is emotive and ‘repugnant’ isn’t quantifiable.

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