This is yet another look at misgendering, in which I take a rather less robust view than Naomi – referencing her post here – as to when it might be reasonable to misgender a colleague in the workplace. (I am not looking at it outside that context, because the Equality Act does not govern how people relate to one another in the course of interpersonal relationships.)
I will use the same characters from Naomi’s blog: Jen and Liz. But in my version, Jen is not transitioning – rather, having attended an Alpha course, she has become a practising Christian, while Liz is an avowed atheist. In each case, the situation arises after a casual discussion about their respective plans for the weekend. Jen has told her colleagues that she will be baptised. It leads on to a more general discussion about religion in which, having been asked directly what she thinks, Liz makes clear that she views any religious belief as “delusional,” and refers dismissively to “sky fairies,” “science-deniers” and “medieval superstition.” (In a social conversation in which she was expressly asked, she is entitled to answer.)
In this scenario, Liz does not repeat her views on religion to Jen, and Jen does not say anything more about her faith to Liz. They continue working together, albeit with some awkward silences.
This is clearly acceptable.
In this scenario, Liz makes a point of repeating her views on religion to Jen whenever they are together. Liz asks Jen whether she also believes in the tooth fairy, and demands to know why she is wearing a polycotton blouse when there is an edict in Leviticus 19 against wearing clothes made from more than one fabric. In the canteen, she highlights news stories about child abuse in the church or religious wars whenever Jen is nearby. When Jen asks her to tone it down, she points out in a way Jen finds belligerent that her lack of belief is just as much a protected characteristic as Jen’s belief, and suggests sarcastically that Jen practise turning the other cheek.
Liz is clearly harassing Jen.
Knowing that Liz is an atheist, Jen persistently tries to convert Liz despite Liz’s clear lack of interest, offering to pray with her, and giving her Bible study leaflets. After Liz’s picture is in the papers showing her attending a pro-choice march, Jen tries to interest her in materials including a “post abortion course” run by her church and focusing on forgiveness, which Liz finds particularly offensive because, unknown to Jen, Liz had an abortion aged 15 after being date-raped.
Jen is clearly harassing Liz, even if she was unaware of Liz’s personal history.
In this scenario, Liz does not target Jen in that she does not seek her out to denigrate her views and she does not repeat her own views to Jen directly. However, every time she mentions Jen’s name, she references their opposing views – with sentences such as “I’ll have to ask Jen, whose belief in a deity I do not share, if she can make 20 copies of that” or “Can we check if Paul, Amy, and Jen (whose belief in a deity I do not share) can make the meeting?”
Putting aside for a moment that this scenario is necessarily artificial, would it be harassment? She is not saying it directly to Jen. Her own (lack of) belief is indeed protected. There is no evidence that she is treating Jen badly; she just doesn’t share her beliefs. And yet I think that most people would agree that this is indeed harassment, because in every single interaction Liz has about Jen, if not to Jen, she uses a phrase that reminds her colleagues that Liz thinks that Jen’s religious beliefs are nonsense. Would it make a difference if she had used less forthright language about her own atheism at the outset? I think probably very little, if any.
I cannot see any way in which a person could ‘misgender’ a colleague behind their back, even while avoiding using any pronoun but “you / your” to their face, without falling into the same error. Every interaction about the person serves only to reiterate and reinforce the disputed issue, and to remind everyone present of the subject’s biological sex. On that basis I tentatively disagree with Naomi’s view that refusing to use someone’s preferred pronouns will “almost never” amount to harassment.
This of course raises the question as to whether requiring an employee to use preferred pronouns stumbles into the same trap. Using the same, admittedly imperfect, analogy, would it amount to requiring Liz to refer to Jen as “Jen (whose faith I share)” at all times? On balance I don’t think that it would. This is partly because employees do say – may even be required to say – things at work which they would not say outside work – such as “have a nice day” to a customer upon whom they wish nothing but leeches and misery, or “our products are the best” when their own preference is the product of a competitor.
But it is also because, socially, pronouns have a little more fluidity than the GC view tends to admit. ‘Passing’ trans people, however few in number, have been referred to in their preferred pronouns since Lili Elbe in the 1930s, through to Christine Goodwin in the 1990s and on to today. The use of feminine pronouns among effeminate gay men has been both reality and the subject of comedy, sometimes self-deprecating comedy, for decades. Are we really to believe that a neurotypical employee who could understand that “ooh, get her” might refer to a male person would still find referring to John / Jen as “her” impossible? And is it really coherent to say that using a socially feminine-coded name – a proper noun – is a reasonable request for a male person but using a socially feminine-coded pronoun – a substitute for that proper noun – is not?
While it is of little immediate help to employees, HR departments, or those with the protected characteristics of gender reassignment or gender critical belief, the historical tendency of the English language to develop along the path of least difficulty may resolve this over the next century or so. In 2121, the use of the singular “he/she” may be as archaic as the 2021 use of the singular “thou/thee,” retained only in local dialect or historical language, or as completely obsolete as the 1021 use of the dual pronoun (wit – we two, git – you two). Equally plausibly, in 2121, linguistics students may be studying as a sociolinguistic phenomenon the brief historic revival of the Chaucerian singular ‘they’ in the 2010-2030 period. Who knows?
Meanwhile, at least until there is a reasonable body of case law on the subject, I think that ‘misgendering’ a specific colleague may very arguably amount to harassment. Either Naomi or I will be wrong – or, given how case law develops, we will both be right and wrong on different points and at different times.