More on “misgendering”

The judgment of the EAT in the Forstater v CGD Europe & ors UKEAT/0105/20/JOJ is prefaced – quite unusually – with a list of things that it does not mean. There had been hyperbolic predictions from some quarters (including the Respondent’s counsel) about the dire consequences of a ruling in Ms Forstater’s favour, so the disclaimers weren’t wholly misplaced. But they were ripe for parody, and Twitter and Mumsnet didn’t shirk the task. The Guardian writer Oliver Burkeman started it: “It’s important to emphasize that the ruling does NOT give Maya Forstater the right to come round and steal your plasma screen tv,” and presently there was a long and helpful list of all the things the ruling didn’t give Maya Forstater the right to do, from tipping her seat back on a short-haul flight to Düsseldorf to wearing armour in the Houses of Parliament. 

The list given by the EAT is shorter, running to only four items, and more prosaic. To summarise: 

  • The EAT isn’t taking a position on “the transgender debate”. 
  • The judgment doesn’t mean anyone can “misgender” trans persons with impunity.
  • It doesn’t mean trans persons aren’t protected from harassment and discrimination under the EqA. 
  • It doesn’t mean employers and service providers won’t be able to provide a safe environment for trans persons.

The first item is self-evident: the EAT was not asked to give its own view on the merits of Ms Forstater’s belief, and it would have been irrelevant to its task (and very surprising) if it had done so. The third item on the list is scarcely less obvious: of course trans persons retain the protection of the EqA from discrimination and harassment, just like everyone else. 

The fourth item is that the judgment doesn’t mean that employers and service providers will be unable to provide a safe environment for trans persons. This is closely related to the third, and scarcely less obvious: trans persons are no different from anyone else in that they are protected from unlawful discrimination and harassment on grounds of any protected characteristic – that is the mechanism by which employers and service providers are required to provide them with a safe environment. Harassment for the purposes of the EqA is defined as conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. When a tribunal considers whether a claim of harassment is made out, it must take into account both the subjective perception of the person who feels harassed, and the objective question whether it is reasonable for him to feel that way; as well as “the other circumstances of the case”. 

“Misgendering”

It is the second item on the list I want to take a closer look at:

This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given case

There were plenty of hot takes on Twitter to the effect that the EAT had ruled that “misgendering” was unlawful harassment; or that even if it hadn’t, that it was possible to infer from the judgment that “misgendering” in the workplace would amount to unlawful harassment in almost all imaginable circumstances. I dealt with one of the latter here

What the judgment actually says is just that it doesn’t say anything about the circumstances in which “misgendering” will amount to harassment. The EAT sets that out at a bit more length at ¶104: 

That does not mean that in the absence of such a restriction the Claimant could go about indiscriminately “misgendering” trans persons with impunity. She cannot. The Claimant is subject to same prohibitions on discrimination, victimisation and harassment under the EqA as the rest of society. Should it be found that her misgendering on a particular occasion, because of its gratuitous nature or otherwise, amounted to harassment of a trans person (or of anyone else for that matter), then she could be liable for such conduct under the EqA. The fact that the act of misgendering was a manifestation of a belief falling with s.10, EqA would not operate automatically to shield her from such liability. The Tribunal correctly acknowledged, at para 87 of the Judgment, that calling a trans woman a man “may” be unlawful harassment. However, it erred in concluding that that possibility deprived her of the right to do so in any situation.

That’s worth some unpacking. 

The Claimant [cannot] go about indiscriminately “misgendering” trans persons with impunity.

That’s the bit that looks most like an assertion that “misgendering” is prohibited. But it needs to be read together with the next sentence: 

The Claimant is subject to the same prohibitions on discrimination, victimisation and harassment under the EqA as the rest of society. 

The first thing to note is that those prohibitions are quite limited and specific. The EqA does not place a general obligation on all of us not to discriminate against – or even victimise or harass – others on grounds of protected characteristics in our daily lives. It operates in defined spheres: the workplace; provision of goods, services and public functions; education; and associations. So if your friend asks you to use zie/zir to refer to him from now on, and you decline, you may lose your friend, but he’s not entitled to sue you under the EqA for any variety of discrimination for “misgendering” him. If a celebrity who is obviously male announces publicly that he wishes to be referred to as a woman from now on, and you write about him using grammatically correct pronouns on Facebook or on your blog or in a comment piece in a national newspaper, he doesn’t have a claim against you under the EqA either: you’re not his employer, or providing him with a service, or running an educational establishment at which he is a student or an association he belongs to or wants to join. 

If your friend asks his employer to require all his colleagues to use his neo-pronouns, and it says no, that may be another matter: your friend’s employer is bound by the EqA in its dealings with him, so he could at any rate frame an intelligible claim against it. And if you work for the same employer as your friend, and you refuse to use his neo-pronouns in the workplace, you could be personally liable under the EqA if a tribunal decided that your conduct amounted to harassment. 

The rest of the EAT’s ¶104 just says that “misgendering” may sometimes be harassment, but that whether or not it is in any given case will depend on the surrounding circumstances. 

I want to provide some pointers to the circumstances in which I think that “misgendering” might – and might not – be regarded as harassment under the EqA. I’m going to do that by examining a series of scenarios (some of which appeared without analysis in my previous blog on the subject), and saying briefly which side of the line I think they fall, and why. But before I do that, a short observation about the word “misgender”, and the manner in which the EAT uses it in its judgment in Forstater

Quotation marks in the EAT’s judgment

 The word (including “misgendered” and “misgendering”) appears 14 times in the judgment (leaving aside its appearance in direct quotes from the employment tribunal’s judgment), in the following distribution: 

“misgender” (double quotation marks): 5

‘misgender’ (single quotation marks): 2

misgender (no quotation marks): 7 

There are also several occasions – notably at ¶90 – where instead of speaking of “misgendering”, the EAT refers more neutrally to a failure to use preferred pronouns. 

“Misgender” means “to gender wrongly”; its use to refer to a refusal to bend the rules of grammar on the request of a trans person is tendentious, to put it mildly. I infer from the EAT’s use of quotation marks that – whether instinctively or as a matter of deliberate calculation I cannot guess – it was disinclined to accept that tendentious implication uncritically. That may be a straw in the wind as to the EAT’s future treatment of complaints about pronouns.

Is it reasonable to insist your colleagues use your preferred pronouns?

One final preliminary point. The EAT in Forstater deliberately limited what could be inferred from its judgment, preferring to leave wider questions about “misgendering” for another day. In particular, it did not express a view on how reasonable it was – or in what circumstances it might be reasonable – for an employee to demand that his colleagues use language in referring to him that is both grammatically incorrect and psychologically unnatural. 

My view on this is that such a demand will rarely, if ever, be reasonable. 

I want to pause here, because what I have just written may strike some as shocking or heretical. So let me say it again, with greater emphasis. I think it is an astonishing and audacious power-grab to announce your (ungrammatical) pronouns and expect others to use them. I don’t think anyone is entitled to exercise that kind of detailed control over other people’s speech, or make that kind of incursion into other people’s freedom of expression. I think it is truly amazing that we have arrived at a point where pointing this out may be widely regarded as a sign of bigotry. And yet, there is no natural limit to the extent of this power-grab, if once we accede to it. Some of the examples that follow demonstrate that. 

I think it is an astonishing and audacious power-grab to announce your (ungrammatical) pronouns and expect others to use them.

Some scenarios 

I’m going to recycle some of the scenarios from my previous post on misgendering, as well as adding a few more. The purpose of the previous post was to demonstrate that it was too simplistic to claim that “misgendering” a colleague in the workplace would always be harassment, so in some cases I just offered them without analysis as examples of situations in which the answer wasn’t obvious. This time I’ll say what I think the answer is in each case. 

In each case John/Jen (referred to as “J”) is the trans employee, and Liz (L) is his colleague. J, who is married, makes his announcement on his first day at the office – the sales department of Zeitghost plc, an IT firm – at the staff meeting at which he is introduced to his colleagues. He’s in smart-casual masculine dress that day, but he explains that from tomorrow he will be consistently wearing women’s clothing, and hopes to embark on a process of medical transition over the coming months. He wants to be known as Jen. He mentions that his marriage is still happy, and his wife is supportive. A male colleague who has always had a friendly, jokey relationship with J asks, “Does this mean you’re a lesbian?” and J says “I suppose I must be.”

Scenario 1 

L is a Quaker. She says her commitment to the truth as she understands it is central to her belief, and although she is perfectly content to use J’s new name, she is not able in conscience to use grammatically inaccurate pronouns. She says she will do her best to accommodate J by rephrasing anything she says about him to avoid using pronouns at all where she reasonably can, but she warns that this will be easier in writing than in speech. J complains that by refusing to use his preferred pronouns, L is harassing him. 

Comment

L is entitled not to suffer discrimination on grounds of her Quaker beliefs. J is entitled not to suffer conduct by colleagues that has the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. When a tribunal considers whether conduct amounts to harassment of J, it must take into account both J’s perception and whether it is reasonable for the conduct in question to have the effect of violating his dignity (etc.). L’s entitlement not to suffer discrimination on grounds of her beliefs must be relevant to the analysis of whether it is reasonable for her conduct to have that effect. 

My view is that J’s expectation – that his preference to be referred to using female pronouns should trump L’s right not to be forced to use language in a way she regards as untruthful – is unreasonable.  He may, subjectively, feel harassed; but I think the extent of his proposed incursion into L’s rights means that the answer to the question whether it is reasonable for him to feel harassed is considered should be an unequivocal “no”.  Note, though, that although this is my confident view of the correct interpretation of the EqA, it can’t be assumed that an employment tribunal would necessarily agree. On balance, I think on these facts L would probably prevail in the end, but it could well require an appeal.

Scenario 2

L has gender-critical views, but she doesn’t feel confident to express them openly in the workplace. She says nothing when J makes his announcement, but in the months that follow, she avoids using any pronouns to refer to him. Mostly, she manages that quite smoothly, but occasionally it makes her sound a bit stilted. 

After a few months, J notices that L is avoiding using any pronouns to refer to him. He raises a grievance, saying that this shows that she doesn’t accept him as a woman. He says this has the effect of creating a degrading and humiliating environment for him. 

Comment 

In this scenario, it is not enough for J that L avoids using masculine pronouns for him: he is aggrieved by her refusal to use feminine pronouns. 

This scenario seems to me the one most likely to arise in real life. Most people with gender-critical views will not be seeking to pick a fight with a trans-identifying colleague; but they may feel quite strongly about their own entitlement to draw a line short of active assent to a belief system which they reject. It may feel to them as if adherents to the dominant belief system in their workplace are demanding from them a humiliating gesture of submission. 

I think facts similar to these are likely to give rise to bitterly fought discrimination cases in the employment tribunals in the months and years to come. I can’t offer HR departments much comfort, either: if they back L, J may sue; but if they back J, L may sue. J may have the enthusiastic support of his trade union, which L will probably lack; then again, L, lacking union support, may be driven to crowd-fund for her legal fees, adding a lot of adverse publicity to the employer’s woes. On balance, backing L is probably the more prudent course for employers, as well as being the right thing to do.

Scenario 3

L has gender-critical views, which are well known to her colleagues. When J makes his announcement, she says “I have no wish to offend you, and I’m happy to call you Jen if that’s what you would like. But I am not prepared to refer to you using female pronouns, because I don’t want to signify assent to a belief system I don’t accept.” 

Comment 

My view is that L is within her rights in this scenario, too, but I don’t feel any confidence that a tribunal would agree. This, too, is the stuff of test cases. 

Scenario 4

L is on the autistic spectrum. She is confused and upset by J’s insistence that he is now a woman called Jen, and being required to use what she thinks are the wrong name and pronouns for J causes her intense distress. 

Comment 

I think this case is clearer. The analysis is very similar to the case where L is a Quaker. J’s demand is unreasonable, and L’s inability or refusal to use his preferred pronouns cannot reasonably be characterised as harassment. If L is disabled within the meaning of the EqA, any attempt to force her to comply with J’s demands is likely to be disability discrimination. 

Scenario 5

L is a child-abuse survivor. When she was ten, her abuser, who was in his mid-20s, groomed her by saying that he was really a teenager in his heart – he’d always been lonely as a child and just wanted another child to play with. L believed him, and at first she liked him and felt a bit sorry for him. He was obsessed with Harry Potter, just like her, and they’d played make-believe games together. L is a lesbian. 

On hearing J say that he supposes he is a lesbian, L suffers a severe PTSD reaction. She goes off sick for a couple of weeks. Her fit note just says “stress”, and when she returns to work she conducts herself as in variation 2: she ducks the whole issue in J’s presence, but refers to him by grammatically accurate pronouns in his absence, and it gets back to him. 

J complains of harassment, and HR calls L in for a meeting to explain herself. L breaks down in tears and explains what lay behind her reaction to J’s announcement. She says she has been horrified by make-believe games ever since being abused as a child. She says that she has no wish to upset J, and she would never describe his transition to his face as “make-believe,” but in truth that is how she experiences it. She says if the employer insists she has to refer to J using female pronouns, she will have no option but to resign. 

Comment

This is a somewhat more difficult situation for HR to deal with, because although J’s demand is grossly unreasonable as applied to L, they can’t explain to J why that is so without disclosing highly sensitive confidential information about L. 

My advice to Zeitghost in this situation would be that they should apologise to L, and tell J that he is at liberty to think of himself and express himself how he chooses, but he is not entitled to require his colleagues to use his preferred pronouns. If J brings an employment tribunal claim and they want to explain the full circumstances that led to their decision, they will need to ask the tribunal for an anonymity order to protect L’s privacy. 

Scenario 6

This time, J has announced that he is non-binary, and his pronouns are zie and zir. 

L says she’s busy at work and in her personal life, and she has no intention of learning a load of made-up grammar in order to refer to J. 

Comment 

I think J’s demand is unreasonable, and L’s response – even if the grammar isn’t actually terribly complicated, and “zie” and “zir” are just to be swapped in for “he” and “him” – is forgivably short. Again, though, I am not confident that in the current climate a tribunal would necessarily agree. 

Scenario 7

This time, J has announced that he has a complex non-binary identity. He says his pronouns are are “zoi, zer, zin, zim” in the vocative, nominative, accusative and dative cases, respectively; and his possessive adjective is “zein/zoiner” in the third person and “zoir” when addressing him. He passes a short handout around explaining the grammar. (Some of his colleagues are relieved to learn that his possessive adjectives are required to agree only in number, but not also in gender, with the noun to which it refers.)

L’s response is as above. 

Comment 

If you didn’t agree with me on the zie/zir scenario, what about J’s more complicated demands in this one? Do you think it’s ok for zin to require zoiner colleagues to grapple with zein invented grammar? And if not, where exactly do you draw the line? 

Scenario 8

When J makes his announcement, L says that she holds gender-critical beliefs, and is not prepared to pander to his delusions. She makes a point of calling him “John,” and referring to him using male pronouns when referring to him in meetings, whether in his presence or not, and in emails to the team. She says things like “Just like a man!” any time he does anything that she regards as stereotypically male behaviour, and frequently talks of his “male privilege.”

Comment

This is what harassment looks like. L is going out of her way to cause J distress and humiliation. Her employer must put a stop to her behaviour at once.

The Protection From Harassment Act 1997

Finally, it’s worth noting that in Forstater, the EAT is referring only to harassment as a form of discrimination under the EqA. There is also an offence, and a civil wrong, of harassment under the Protection From Harassment Act 1997. No doubt “misgendering” could be performed in a manner that would give rise to liability under the PFHA. Detailed comment on what that would involve is a matter for a separate blog; for now it’s sufficient to comment that the threshold is high: the ordinary annoyances, affronts and upsets of everyday life will not cross it.

Conclusion 

“Misgendering” is a concept that offers the employers of trans-identifying people nothing but trouble, from all sides. Pronouns are a part of language that we normally use almost entirely unconsciously and automatically. Putting them on permanent manual override imposes a cognitive cost – as is obvious from the regularity with which even committed allies stumble when trying to comply. It demands that attention be paid to something that we can normally do with no attention at all. I suggest above that the demand for ungrammatical pronouns is a power-grab, so perhaps the difficulty and the call on conscious attention is part of the point. 

“Neo-pronouns” are the perfect reductio ad absurdum: if a trans-identifying male is entitled to “she/her,” why isn’t a non-binary person entitled to “they/them”? And if “they/them”, why not “zie/zir” or “xe/xem/xyr”? And if a non-binary person is entitled to neo-pronouns that substitute one-for-one for English pronouns, what possible justification could there be for saying that they can’t borrow the more complex grammar of another language – or invent their own? What rational limit could there ever be to their entitlement to hijack their colleagues’ attention with awkward and unfamiliar grammar? 

Far from accepting that failure to use a trans-identifying individual’s preferred pronouns will always or normally amount to harassment, my view is that – unless done aggressively and with intent to harass – it almost never will. The very concept of “misgendering” is a menace: it should be carefully wrapped in quotation marks, and disposed of as hazardous waste. 

Is “misgendering” always harassment?

Human rights barrister Adam Wagner posed this question on Twitter the other day: 

At that point, Legal Feminist retired temporarily from the fray, promising a proper answer in a blog.  This is that blog. (Several different legal feminists tweet from Legal Feminist – it was me in that exchange. As always, these are my views and don’t purport to represent a collective or consensus view.) 

A preliminary point about my own use of language

I think the easiest and clearest way to go about answering Adam’s question is to consider it in the light of a set of variations on his bare facts, and ask which variations – if any – change the answer. But before I do that, I want to deal with a preliminary point about my own use of pronouns in this blog. Where real people are concerned, I will extend them the courtesy of using their preferred pronouns if I reasonably can. But fictional persons constructed for the purposes of argument have no claim on courtesy. So when I need pronouns for the characters in my examples, I will use grammatically accurate pronouns. It’s best to keep things real where possible.

The protected characteristics 

On the substance, the first thing to note is that there are likely to be at least three relevant protected characteristics in play here. Let’s call the transitioning employee John, and the gender-critical employee Liz. Let’s assume that John is a man who announces to colleagues that he now identifies as female, and wishes to be known as Jen. John/Jen (“J” in the rest of this blog) has the protected characteristic of gender reassignment. J may well hold protected beliefs about the nature of sex and gender; and Liz’s gender-critical beliefs are also protected. I’ll call Liz “L.” 

J is entitled not to suffer harassment on grounds of gender reassignment, or on grounds of protected beliefs about sex and gender. L is entitled not to suffer harassment on grounds of her gender-critical beliefs.

Theme 

Adam has provided the theme: 

“A person comes to work and tells colleagues that they wish going forward to be referred to in a different gender as they are starting the process of transitioning. A colleague refuses on the basis of GC beliefs and consistently and against their colleague’s wishes refers to them as their biological sex, to the increasing upset of the individual.” 

Variations 

Variation 1

J, who is married, makes his announcement on his first day at the office – the sales department of Zeitghost plc, an IT firm – at the staff meeting at which he is introduced to his colleagues. He’s in smart-casual masculine dress that day, but he explains that from tomorrow he will be consistently wearing women’s clothing, and hopes to embark on a process of medical transition over the coming months. He wants to be known as Jen. He mentions that his marriage is still happy, and his wife is supportive. A male colleague who has always had a friendly, jokey relationship with J asks, “Does this mean you’re a lesbian?” and J says “I suppose I must be.”  

L says that she holds gender-critical beliefs, and is not prepared to pander to J’s  delusions. She makes a point of calling him “John,” and referring to him using male pronouns when referring to him in meetings, whether in his presence or not, and in emails to the team.

Comment

L is going out of her way to treat J in a way that she has she knows will cause him distress. This is clearly harassment. 

Variation 2 

J makes the same announcement, but this time L says nothing. Except that she avoids addressing him by name, she treats him with irreproachable friendly courtesy to his face. Unsurprisingly, the need to use a pronoun to refer to him in his presence never arises; and in writing, she manages to steer round pronouns if she mentions him. But any time L needs to refer to J in a meeting or conversation with a colleague, she  uses male pronouns. This gets back to J, and he asks her to respect his preferred pronouns at all times. She refuses, saying that she has no wish to upset him, but she doesn’t accept that he is entitled to police the language she uses in his absence. 

Comment 

Is L’s failure to use J’s preferred pronouns conduct related to his gender reassignment that has the effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? Is J’s attempt to control L’s speech about him in his absence conduct relating to her gender-critical beliefs that has the effect of violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her? 

If L is dismissed for what the company regards as her harassment of J, and complains to an employment tribunal of discrimination on grounds of her protected belief, what will happen? In the current climate, I don’t much fancy her chances – but that’s not the same thing as saying I think she ought to fail. As a matter of statutory interpretation and principle, and the proper balancing of conflicting rights, I think this one is genuinely tricky.

Variation 3 

In this variation, J and L have worked together in the sales department for 10 years. They have some history: L, who is a lesbian, rejected J’s sexual advances soon after he joined the department. He took the rejection badly, and was subsequently given a final warning and temporarily moved away from the sales department for homophobic bullying of her. He moved back to sales a couple of years ago; relations since then have been professional, but distant. 

J makes his announcement at a staff meeting that he is now Jen. He is wearing a men’s suit and tie as he has for the last 10 years, and he says nothing about medical transition, or about changing his style of dress. He does volunteer that he is a lesbian now, and almost imperceptibly winks at L. During the days and weeks that follow, nothing changes about J’s manner of dress or presentation, except that occasionally while at his desk he wears a shiny slide in his hair. He takes to using the ladies’ on the sales floor. L takes to using the ladies’ two floors up.

L’s conduct, and the rest of the story, are as in variation 2. 

Comment

I don’t think this one is even tricky.  I think it’s obvious who is the aggressor in this story, and it’s not L.

Sub-variation 3(a) 

The story is the same, except that this time J grows his hair a bit longer and takes to wearing make-up, and skirts or dresses; and as well as using the ladies’ on the sales floor, tries from time to time to engage L in conversation about clothes, hair and make-up. 

Comment 

I still don’t think this one is even tricky. J is harassing L. And – importantly – that conclusion doesn’t depend on an assumption that his transition isn’t “genuine.” It may be – it may not be. It may not be possible to say with any clarity what “genuine” would mean for this purpose. None of that matters: J’s objectively observed conduct towards L – including his attempt to control how she refers to him in his absence – is unwanted conduct that has the effect of violating her dignity and creating an intimidating, hostile (etc) environment for her. 

Variation 4 

The set-up and J’s announcement are as in variation 1: J is intending social and then medical transition. He is new to the department, and there’s no history between him and L. 

Sub-variation 4(a)

L is a Quaker. She says her commitment to the truth as she understands it is central to her belief, and although she is perfectly content to use J’s new name, she is not able in conscience to use grammatically inaccurate pronouns. 

Sub-variation 4(b)

L is on the autistic spectrum. She is confused and upset by J’s insistence that he is now a woman called Jen, and being required to use what she thinks are the wrong name and pronouns for him causes her intense distress. 

Sub-variation 4(c)

L is a child abuse survivor. When she was 10, her abuser, who was in his mid-twenties, groomed her by saying that he was really a teenager in his heart – he’d always been lonely as a child and just wanted another child to play with. L believed him, and at first she liked him and felt a bit sorry for him. He was obsessed with Harry Potter, just like her, and they’d played make-believe games together. L is a lesbian. 

On hearing J say that he supposes he is a lesbian, L suffers a severe PTSD reaction. She goes off sick  for a couple of weeks. Her fit note just says “stress,” and  when she returns to work, she conducts herself as in variation 2: she ducks the whole issue in J’s presence, but refers to him by grammatically accurate pronouns in his absence, and it gets back to him. 

J complains of harassment, and HR call L in for a meeting to explain herself. L breaks down in tears and explains what lay behind her reaction to J’s announcement. She says she has been horrified by make-believe games ever since being abused as a child. She says that she has no wish to upset J, and she would never describe his transition to his face as “make-believe,” but in truth that is how she experiences it. She says if they insist she has to refer to J using female pronouns, she will have no option but to resign. 

That’s enough variations

I’m not going to set out my views on all these variations individually here. I hope they are sufficient to make good my claim that “Yes, always” is an inadequate answer to the question posed by Adam.  

Comments are open.