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.
Can L use gender neutral pronouns for everyone? Maybe depends whether L has always done this at work, for example on the basis that it reduces unconscious stereotype bias.
Suppose I hadn’t been a very boyish little boy, and so grew up very sensitive about any apparent slurs on my masculinity. Would I be justified in feeling treated in a derogatory way if I heard myself referred to as “they” rather than “he”? I’d much rather be stereotyped as male than treated as something indeterminate.
Also why should L should use gender neutral pronouns for everyone, if that doesn’t come naturally to her? That might be detrimental to her, if she’s talking to someone (like me) who thinks that one needn’t follow the arbitrary speech injunctions of third parties. I might get the idea that she’s suggestible.
I don’t see how it’s derogatory if L refers to everyone the same way and has always done so for reasons unconnected with masculinity or femininity.
If by ‘gender-neutral’ pronouns you mean they/them then remember that some people crave their use instead of she/her or he/him, so they/them might not be seen as neutral at all: someone who craves you use she/her (despite being male) could well object to being referred to as they/them. And that still ignores the linguistic contortions that doing so requires of the speaker. I suspect the only way you will satisfy some people’s pronoun demands is by full capitulation to their compelled speech.
What about L using gender neutral pronouns (they/them) for J?
J is clearly not referring to L by the pronouns that refer to the birth sex of L.
Gerry Davies has asked an excellent question: https://twitter.com/g_c_davies/status/1412167254133948417 – why aren’t we talking about the protected characteristic of sex here?
My preamble about the protected characteristics says there are likely to be at least three protected characteristics in play , but I think Gerry is right that the protected characteristic of sex will often if not usually be relevant as well. My examples aren’t fully worked: I haven’t offered a complete analysis of any of them, and I’ve offered no analysis at all of the last three.
I think in variations 3 and 3(a), J’s conduct is quite clearly sexual harassment of L, and if he (or he supported by HR) insists that L must use his preferred pronouns – and by implication, assent to the proposition that he is now a lesbian – that seems to me to compound and aggravate his sexual harassment of her.
In variants 4(a), 4(b) and 4(c), all I’ve done is write in some additional circumstances that show why it’s going to be pretty obviously unreasonable for anyone to insist that L uses J’s preferred pronouns. Those variants lay the foundations – depending what J and HR do next – for potential complaints by L of discrimination or harassment on grounds of religion or belief, disability, and (potentially in all cases, but especially the last) also sex.
I respectfully disagree with your emphasis on the idea of ‘control’ of a colleague’s speech as an unusual factor in misgendering cases. If a colleague, say, converts to Islam, and changes their name from Cassius to Muhammad, (or to Christianity, and from Saul to Paul, etc.) my work might expect me to use his preferred name erga omnes even if I don’t really believe Saul had a revelation on the road to Damascus. Similarly, if a colleague was fasting for Ramadan, I might be expected not to talk with other colleauges about how I thought fasting was a bit idiotic, even if my disbelief in Ramadan is certainly protected. Many people in the workplace may not believe in same-sex marriages are anything but a parody of “traditional” marriage, just as many may believe transwomen are a parody of “real” women, but in both cases, it might be harassment to express such views regarding specific colleagues (as opposed to generally).
Interesting point. I think there is a relevant difference between expecting people to refrain from disparagement of their colleagues’ beliefs; and asking them to pay active lip-service to those beliefs. But exactly where you draw that line isn’t wholly straightforward.
It’s also far easier to pay lip-service to something that doesn’t directly affect you. Your colleagues don’t ask you to pray or fast with them, so you can just keep quiet.
But if J wants to use the women’s toilets at work or be considered for a women’s award, L may herself be feeling pretty unhappy. Are L’s feelings taken into account too? I am finding the idea of compelled speech very hard.
From a layman’s perspective, is there not a difference here between the name (which can be changed by the individual and is therefore reasonable request for addressing as Muhammed, Paul or Jen), and the sex (referring to J as she/her etc).
It wouldn’t be controlling per se to use the new name on the same level as it would be to demand the use of female pronouns.
Similar to accepting the change of Paul/Muhammed and using it, but not being required to believe the same religious beliefs as the subject?
It is indeed compelled speech. Pronouns do not belong to the person. They are descriptors of someone’s sex. They are not part of a persons name. In the context of the “Gender Identity” religion, “he” and “she” are the sacred words of that religion that the followers demand others use to validate and enforce their religion on to others. It is a fundamental violation of someone rights under ECHR Articles 9 & 10 to compel someone to practice the religious belies of another.
The Supreme Court in Lee v Ashers Baking [2018] held that one cannot be forced to promote a message that they fundamentally disagreed with.
The fundamental point of the she/he pronouns is that it IS promoting the religious view of someone else that one explicitly denies. That’s why it IS a big issue. If it wast fundamentally to someone own belief, it wouldn’t matter.
Why would you think that he/she pronouns is necessarily promoting one’s religious views? There are non-religious people who reject neutral pronouns.
Separately, can you please explain what elements of J’s conduct in Sc. 3 give rise to claims of harassment against J? Is the underlying assumption that J is acting in bad faith or in continuation of J’s bullying (which sounds like it ought to have led to his termination, but that’s another matter)? From the hypothetical facts given, I don’t see how J’s behaviour can be seen as specifically harassing L, unless I’m missing something—how are J’s actions those of an “aggressor”? (Of course, I’m discinclined to give the benefit of the doubt to even a hypothetical homophobic bully, but I’m trying to work within the scenario ) If J is not fraudulently claiming gender transition, what is aggressive?
I don’t think we need to inquire whether J – in saying he is transitioning – is acting in bad faith. He volunteered that he was now a lesbian to a lesbian who has previously rejected his advances, and winked at her: whatever the status of his transition, that conduct is harassment of her. And now he’s invading a space that she is entitled to expect will be for women only, under cover of his transition – or as the case may be, ‘transition.’ We have no information about whether or in what sense his transition is ‘genuine,’ and for my part I don’t claim to have any insight into how you would define a difference between genuine and fake transition. What we can tell – can’t we? – is that his objectively observed conduct is likely to have the effect of creating a hostile, intimidating (etc) environment for L.
Thanks for your response! In your scenario, J’s past means that even a “Hello” could plausibly be harassment, and again, you’ve written J to be quite unpleasant and not really worth the benefit of the doubt.
Frankly, any competent company would have either fired J or kept J and L entirely apart. However imagining myself as J’s defence counsel, for the sake of argument, how has J describing themselves as a “lesbian” constituted harassment per se? (Given that it was a single “imperceptible” wink, I doubt that would hold up as evidence) To use another example, let’s say I’m an Orthodox Jewish woman, and have refused to date a colleague on the stated reason that he is not Jewish (and that colleague has a history of bullying similar to J). One day, the colleague comes in and informs me he has gotten a Liberal Jewish conversion. As an Orthodox Jew, I think that conversion is worthless, and don’t regard my colleague as a real Jew anymore than L thinks J is a real lesbian. Yet, would it really be harassment for my colleague to describe themselves as Jewish, given he sincerely believes he is Jewish? Unless the Jewishness is all a sham to harass me, what has the colleague specifically done wrong? I’m still allowed not to date the colleague, I’m still allowed not to consider the colleague a real Jew, but I think it would be hard for me to argue that the colleague getting even (in the eyes of an Orthodox Jew) a joke conversion to call themselves part of my dateable category (be that Jew, lesbian, or both) is grounds for harassment.
This, I think, is where a sincerity analysis comes in. It’s used all the time in immigration law (particularly asylum claims), and has come up in ECtHR and especially (though obviously different contexts) in SCOTUS case law on religion. If the person is using a cover of identity to perpretrate fraud or harassment, that’s different than merely being an unpleasant person nonetheless exercising the rights even the most unpleasant of people enjoy.
It’s true, in Variation 3 I deliberately made J unpleasant: my aim was to show that a refusal to use preferred pronouns could arise with a wide variety of surrounding circumstances.
In this variation, while doing precisely nothing (apart from the occasional shiny hairslide) to attempt to appear female, J announces that he identifies as a woman, and volunteers – in the presence of a lesbian he has previously harassed for rejecting his sexual advances – that he is now a lesbian. He “almost imperceptibly” winks at her; and he takes to invading a women-only space she uses.
Don’t you agree that L is bound to experience this as quite seriously menacing behaviour? I don’t think the “almost imperceptibly” makes it less so – quite the reverse. I meant to indicate that the wink was for L’s benefit, but no-one else was supposed to have noticed it; so that J could deny it if he chose. Whatever J’s intentions, isn’t L bound to feel he’s gaslighting her? And isn’t his insistence on female pronouns – when he is not only obviously male, but not even making any attempt to perform femininity – more power-play? In invading the ladies’, isn’t he asserting dominance by doing something he knows she won’t dare object to? And sure enough: in my story, she doesn’t go to HR to complain that one of her male colleagues is using the ladies. Instead she does what women usually do when men threaten them or make them uncomfortable: she modifies her own behaviour, limits her own freedom, to avoid the problem.
Thanks again for your response. I am trying to approach this as a legal problem, rather than a psychological one, and therefore, I’m really more interested in the question of law—if I understand you correctly, you are suggesting that J’s highly limited social transition can constitute harassment per se. Is there ET/EAT authority for this proposition? I think my analogy to religion at work (L is an Orhtodox Jew, and J converts to Liberal Judaism but still has a BLT sandwich every lunchtime in front of L while invading the kosher kitchen at work) stands. We can all agree that J, in the facts you invented, is delibrately awful, but if this comes to an employment judge, can a plea in law really stand on just J’s transition (be it of religion or gender)? I’m not sure it can, but as my username suggests, I’m not an employment lawyer, so I am genuinely asking.
Thanks again for having such a refreshingly civil back and forth on this issue.
REPLY (There’s no reply button, so I’m improvising by editing your comment).
You too.
I don’t think it’s just J’s transition (or as the case may be ‘transition’) that amounts to harassment, in this variant: it’s volunteering that he’s a lesbian to someone he’s previously harassed, and winking; and then invading a female-only space she uses; taken together with the wholly theoretical ‘transition,’ that for me add up to harassment. His conduct seems calculated to make L fear him.
I’m not aware of any case law that will help us. The only appellate case that even touches on ‘misgendering’ in the workplace, so far as I’m aware, is Forstater in the EAT – which is where this conversation began.
Why should pronouns be gender based and not sex based? Why is it misgendering and not accurate sexing?
Pronouns have historically always been associated with grammatical gender (the original meaning of the word gender before it got its sociological connotation), a broad linguistic categorisation which has little to do with biological sex. Most Indo-European languages class the world into broad groups, masculine, feminine, and neuter (some languages have merged these to get two categories, like Swedish—which has common and neuter— and the Romance languages—which have masculine and feminine). As you may know if you’ve taken French, a fork (une fourchette) is referred to as “she” (elle), even though it has no sex. Even in English, we haven’t entirely lost grammatical gender; ships are customarily referred to as “she”, despite having no sex, and traditionally (though people usually don’t follow this with pets) animals are mandated to take the neuter pronoun “it”. Anglican theology is clear that God is neither male nor female, but takes the pronoun “he” in the Book of Common Prayer. Pronouns have always been a matter of gender, not sex, and this long, long history has nothing whatsoever to do with gender identity or transgender people. If you want to start a movement that insists pronouns take sex, rather than gender, then you’re welcome to, but that’s not the historic trend.
I’ll be blunt…. That’s simple meaningless nonsense. Pronouns are not based on pronouns, they can’t be, gender does not exist. Pronouns derive all of their meaning from the biology of sex.
Gender can only gain meaning by referring back to the biology of males and females. If Physical biology is removed from the concept of gender, it is absolutely impossible to define what the word “gender” means. There is no “gender” without sex.
Ships are regarded as “she” due to some vague association with biological by females
If you want to introduce the definition of gender that omits sex, you are free to do so. Please define what “he” means.
Variation 2 made me wonder if not using pronouns could be considered harassment? So L avoids using third party pronouns when referring to J, which makes her speech and writing a little clunky at times (though as you point out this wouldn’t usually be in J’s presence, when ‘you’ could be used).
Good question. I was confining myself to Adam’s question, so I haven’t explored this one. But if a colleague of a transitioning employee is observed to be steering carefully round any need for a singular pronoun, what then? It’s a fairly clear indication of unblelief. Is refusing to signal assent to gender theory tantamount to harassment of any trans colleague? That would seem a surprising state of affairs.
Thank you for writing this Naomi.
However, I am really unhappy to see that the scenarios imply that women have to prove extraordinary abuse for their need to use pronouns as normal to merit consideration.
99.999% of women have experienced sexual harassment.
1 in 4 have experienced sexual abuse or rape.
A similar number have experienced (or are currently trapped in) relationships with abusive men.
Like many women, I *need* to know who is male and who is female – for safety. Yes, I know “not all men” are potentially dangerous – but enough are that all women take precautions. We can’t do this if our employers and our colleagues insist x is y.
Insisting on biologically incorrect pronouns is gaslighting. It is a form of coercive control.
I have been in the situation where I was working with someone with a female name, who everyone referred to as “she”. I had no idea this person was actually a man. I just (perhaps naively) accepted “her” as a rather masculine-looking woman. Because no-one gave me any clue this was not the case, I happily agreed to 1-to-1 work situations that I would never have agreed to had I known he was a man. I was shocked when I discovered the truth – and angry that colleagues and my boss had let me put myself in potentially dangerous situations without giving me any indication at all that this might not be a good idea. Pronouns really do matter!
Why on earth do men who are pretending to be women, and who insist on everyone joining in in pretending they are women, have more consideration and more rights in the workplace than women?
Plus, the scenario where the woman has to go to a different floor to go to the toilet. I can imagine workplaces where this will be frowned upon as taking too much time, so yet again women will be penalised.
Thank you. I wasn’t intending to give the impression that women have to have suffered extraordinary abuse before having any right to have their preference to use grammatically accurate pronouns to be treated as material. I was really trying to do something quite limited in these examples: just to demonstrate that even if refusing to use a colleague’s pronouns might sometimes be harassment, it certainly needn’t always be.
I included the most extreme example as a way of looking for common ground with people who disagree with me. I would hope that even someone who thinks refusing to use someone’s preferred pronouns is normally to be regarded as quite an extreme manifestation of disrespect or even hatred ought to be able to see that the situation is rather different in variations 3 and 4c. I’m not sure whether I’ve succeeded, because we haven’t yet heard from Adam or any of the other lawyers who generally disagree with me on these matters.
I can’t comment on your particular situation, and I am very sorry to hear that you have had discomforting and anxiety-inducing experiences at work.
However, as a matter of law—and although I am in law, employment law is not remotely my field, so I am very open to corrections—it would be a serious GDPR issue to start informing other employees of a private medical or social characteristic of another employee. (It might also be the tort of misuse of private information, although GDPR is the easier route) I have trouble believing—and again, I am very open to correction, because it is always dangerous to speak outside one’s particular field of specialty—that it would be proportional or reasonable to ever disclose such information to other employees. As I say, I may well be wrong on this, and I will take a look for any case law (as well as at the practitioner’s texts on WestLaw for employment law) to see, but given how personal and private gender assignment status is (and given its protections under various aspects of the law), I have trouble believing that your genuine and understandable fears could pass the hurdle for disclosing such information without consent of the data subject. You may well think that this merits a change in the law, but until such a change happens, we work with the laws we have….
Hi Naomi
Thanks very much for running though these different scenarios – your analysis certainly shows why Adam Wagner’s absolutist position is problematic.
I have 2 questions:
1) Does the law make a distinction between misgendering and correct sexing? I have seen some trans people saying that misgendering is very upsetting and is a form of workplace harassment but what about correct sexing?
An example scenario follows where Felicity is a female employee, the boss is the manager and there is a newly transitioning transwoman at work who was formerly called John but now goes by the name of Julie and uses she/her pronouns:
Boss: John is transitioning to Julie, Julie will be using the women’s changing rooms and showers
Felicity: I feel uncomfortable with Julie using the women’s showers and changing rooms, given that she is a male.
In this case, Felicity uses the transwoman’s preferred name and pronouns (Julie, she/her) but she correctly refers to Julie’s sex as “male”.
In this case, Felicity acknowledges Julie’s identity by using the name “Julie” and the preferred pronoun “she” but correctly sexes Julie as male. Is it legally possible to correctly gender and correctly sex at the same time without it being cast as the deadly sin of misgendering?
2) Let’s say I (XX female observed female and registered female at birth) decide I want to identify as a transwoman (gender identity is something everyone has according to gender ideology and maybe I want to live my best life as a trans woman rather than a boring old cis woman).
Would I receive legal protection under the protected characteristic of gender reassignment as a trans woman? If so would that arise from the moment I announce my gender transition to transwoman or would I need to take some action like informing my boss, wearing a shiny hair slide etc.?
I suppose my point is, can anyone legally adopt a transwoman identity or is it just for males?
Following Forstater, is it also harassment if my employer repeatedly asks me to fill in equalities monitoring data forms that ask me to state my gender identity without giving an option for “none”?
I have successfully challenged what was a compulsory question about ‘gender’ (they clearly didn’t mean sex). I asked what they meant by the term gender. They said, sorry that it should be gender identity. So I said well I cannot answer that honestly as there is not option for me to clearly show I do not hold a belief in gender identity and that being so I am being prevented from completing this application form and therefor you are discriminating against me. So they removed all mention of gender/gender identity.
I think there should be an option that clearly shows you do not believe in gender identity, as something like ‘none’ might be interpreted as one of the ever expanding number of genders
I hope this doesn’t come across as pedantic, but has the situation where you are referred to by third person pronouns in your person really never arisen?
It happens to me with some frequency, but in a personal and professional context. For example, in meetings, I will be referred to initially by name, and subsequently by third person pronoun.
In your example, is L using more abstract terms such as “my colleague” or “the relevant stakeholders” to refer to J?
I said in relation to my scenario about L and J, “Unsurprisingly, the need to use a pronoun to refer to him in his presence never arises.”
I think much depends on the nature of the working arrangements. I’m not sure I’ve often had call to refer to a colleague in the third person in his or her presence, but I can imagine team arrangements in which that need would be much more likely to arise. So I think my scenario – in which, in fact, the need never arises – is plausible enough. But I think what you’re taking aim at is the the implication of my “unsprisingly”: that the need to choose a third person pronoun for a colleague in their presence is essentially an imaginary problem. On reflection, I think you’re right: in may working situations, it won’t be acute – but it certainly can arise.
I can imagine a number of scenarios where third-person pronouns would naturally be used when the person is present. For example, introducing a colleague to customers as this comedy sketch shows (if you’ve not seen it, it’s some light relief!).
Bearing in mind that even one infraction could get you into trouble, it could be an everyday – and stressful – hazard.
Thanks. Also, apologies for the typing errors in my post.
Funny how typing errors are acceptable by all but slipping up on calling a bloke in a suit wearing a shiny hair clip “he” or “him” is the subject of such debate!
Below is a copy of a letter sent to The Times
Sir,
Your report “Campaigner cancelled for questioning the term “birthing people”” (July 20), is, in a similar manner to the JK Rowling incident, another example of much heat but little light being shed on what is actually going on. The answer can be found in Stonewall’s website definition of “gender identity” which is a person’s “innate sense of their own gender”, irrespective of physical characteristics- in other words, purely what is in the person’s mind. If this was clear to everyone, there would be little argument.If someone didn’t like the term “birthing person”, I can’t see how the trans community could object to the “full English” translation of what that means, namely: ” a person who has the physical female (or woman’s) characteristics necessary to give birth”. I believe almost all disputes over language could be solved in this way(- although a small element of that community may still seek to require everyone not to use man/woman/ male/female at all in relation to physical characteristics but to redefine the English language to refer only to mental characteristics).
The other area of controversy is over access to women’s safe spaces and is an entirely separate issue related to the mischief which safe spaces are designed to protect against (“safeguard”, in modern jargon)- ie a purely physical test, just as someone who “feels” over 18 is not permitted to buy alcohol if physically under 18.
Interesting. In Sweden the diskrimineringsombudsman has stated that completely avoiding pronouns would also count as discrimination, though there is no legal precedent (or reasoning about clashes of rights like with disability).
I don’t see that cases 3 or 4 (or any of the variations) have anything to do with misgendering: as you have described them, they are both potentiall straightforward issues of harrassment, in which the sexes and gender identities of the protagonists are irrelevant.
As a lesbian L, might be equally harrassed if she were subjected to persistent unwanted attention by a cisgender man. Her straight friend (let’s call her “Linda”) might be equally harrassed if she were subjected to persistent unwanted attention by a cisgender lesbian.
But some of the comments demonstrate what could make these two situations much more difficult, because it is very obvious from the language used by some commenters that any excuse will do if it can be used to attack a ttrans person.
To start with, some scenarios involve J taking absolutely no practical steps to progress their transition. This is highly unlikely. Transition is a slow process — made slower by anti-trans propaganda making it more difficult to access medical support but the implication is that J is a “fake”. In that case, they do not have the protected characteristic of Gender Reassignment.
If J has made any progress, then she does have the protected characteristic. According to the Statutory Code of Practice (still in force), she should use the toilet facilities appropriate to her gender. L’s objections are irrelevant: the facilities are available to her, she is simply choosing to use a less convenient alternative.
The Quaker argument and “grammar” arguments are even more specious: the Quakers are one of the most trans-friendly of all the Abrahamic relicious groups, and there is nothing grammatically incorrect about referring to a person by their gender rather than their sex. If anything, grammar tends to be more concerned with gender than with sex! And if you really don’t want to use someone’s gendered pronoun, the singular form of “they” is usually an acceptable alternative , and has a history at least as old as the singular form of “you”.
The PTSD argument sounds convincing — so long as we believe that L’s PTSD story is true — HR might need to look into that, before doing anything that might constitute victimisation of J.
But there is overwhelming evidence that persistent, deliberate misgendering causes severe depression or PTSD in trans people. L’s historical PTSD cannot be used to justify her being allowed to cause PTSD in J.
yes, it is alwayd harrassment in all circumstances btw trans women can be lesbian too! these women who misgender trnswomen should be socially ostricized