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.
The point about cognitive overload is interesting. In high pressure situations eg operating theatre, air traffic control, anything that distracts focus from task could be dangerous
I take issue with your use of “grammatically correct” and “bend the rules of grammar”. These phrases assume, in context, that rules of grammar would mean pronouns refer to biological sex, and not to social gender. This is a very novel reading and I would challenge you to produce an authoritative source.
I would suggest it is important that “rules of grammar” are a matter of authority, ultimately State-related, not of personal belief. Language evolves in society and this evolution involves interplay of people’s personal beliefs, but the evolution becomes a “rule” when authoritative sources reflect it.
So I suggest your apparent claim that use of pronouns “he/his” and “she/hers” not in alignment with biological sex is “bending the rules of grammar” is simply wrong. Pronouns refer to social gender, that is, a social classification originally based on sex. (Not to be confused, however, with gender identity. “One’s social gender is always one’s gender identity” is a sociopolitical position).
However, in itself this objection does not change the outcome your analysis. For example, in Scenario 1 L’s sincere belief is that a person’s social gender is always their biological sex (also formulated as “society must recognise biological truth”), and thus, pronouns (which by rules refer to social gender) must also match biological sex.
I would suggest, however, that based on recognition that *grammar rules are decided centrally, in a State-related way, and authoritative* there is a compromise solution available that “covers all bases”.
Modern grammar rules unequivocally recognize that the pronoun “they” is not only a plural pronoun, but also a singular pronoun for “a person of unspecified gender”; for example, see Oxford Dictionary art https://www.lexico.com/definition/they
I would suggest that the use of “they” for any person should therefore not be seen as misgendering, because the pronoun does not specify any gender. And equally it should not be seen, by those of conservative (including religious or gendercritical) beliefs, as missexing, because, while they believe social gender (as applied to pronouns) must match sex, again the pronoun does not specify gender. It can therefore be a “safe haven” for all sides to use.
In your Scenario 1, L is *not* entitled to a belief that the “they” pronoun is inapplicable, because that would be a belief about the English language – but language is determined centrally (in the UK, “Queen’s English” refers to this fact). She can have a preference for traditional-style language (in fact some Quakers like to use “thou” too) but this is not protected.
Exactly the same reasoning applies to Scenario 3, where L is gendercritical. The use of “they” would not signify assent to any belief system, only to the centrally-defined rules of grammar. Now, the use of “they” *only for the trans person” might be read as signifying assent to a “change of gender”; in this case L can use “they” for everyone (which might be a *better* option anyway for social theory reasons, but this is not a legal matter).
In Scenario 4, autistic persons (and I am writing as one) are usually *very* comfortable navigating clear written rules. “The singular they is a pronoun that does not specify a gender, and thus applicable to everyone” is a clear written rule. “A person is never to be referred to in a gender they do not assent to, whatever gender they appear to you” is another clear written rule. L then has a choice whether to remember that a particular person’s preferred gender is not what appears to L, or else, if that is too bothersome, L can use they for everyone.
Scenarios 6 and 7 are obvious; the use of “they” would not cause a harassment claim in any reasonable eyes.
There can be cases where mere use of “they” for all persons not comfortable with reference “by biological sex” is not sufficient. I suggest these are cases when the speaker is not merely a colleague, but in a position of authority, such as a teacher over students or, as Dr Mackereth was, a state benefits officer over clients. But this is unlikely to be resolved without litigation. I would suggest, however, that in *most* cases the use of “they” is a solution that should work for all concerned, and those disagreeing, on any side, are likely to lose in litigation over being unreasonable, simply because grammar rules for the singular “they” are authoritative and unambiguous.
I would disagree with the thesis that the rules of grammar are ‘a matter of authority, ultimately State-related’. This certainly used to be the case beginning in the 19th c., with the spread of schooling from 12 and finally from 5. Grammar was taught as a subject and children’s speech was corrected to conform to rules that only the élite used in everyday life. Nowadays this is no longer the case, at any rate in the US and UK, where children are almost never taught complex rules of grammar and usage, and the prevailing orthodoxy has become that they should write the way they speak, which all too often is in Twitterese, but there you go. The prevalence of such phenomena as hypercorrection, of dangling qualifiers, and of what I—a traditionally-educated middle-aged woman—regard as semantic howlers and pronunciation errors, proves this point. Furthermore, languages are fragmenting into ever more dialects created by small user-groups anxious to affirm their identity and exclude outsiders, e.g. gamers.
Languages follow rules, but the rules are very fluid in oral cultures. Grammar, both technical and literary-critical, was invented because texts important from a cultural or religious point of view had become inaccessible to people whose language had changed in the course of centuries since they had been written down.
But what passes as acceptable in a dialect is decided by all the users of that dialect. There is no centralized authority, although there may be someone who is more eager to impose rules and/or to create and disseminate lexical novelties. An individual has the right to be referred to by his or her legal name, and may indicate a preference for a proper name that is different from this one, although others may refuse to comply with that preference, and I think disagreements of this kind should not be settled in court. But an individual does not have the right to impose on others changes in other elements in the dialect they all speak, such as imposing a whole new lexeme with declined forms that is special to them. I would try to refer to a colleague with a beard and a penis as ‘her’ or, as you suggest, ‘they’, though it would be a struggle. Beyond that I will not go. This is all poorly-disguised narcissism and misogyny. Meanwhile, women are being raped by transwomen in California’s jails, which I think is a more serious problem.
And so what is ‘social gender’?
We all, if we’re being honest, know what biological sex is, and how to fit one human into either the male or female category, but just what is social gender and how would we know how to fit any one human into any of the myriad categories? In which case how would we know which pronouns to use?
Of course our use of pronouns (for the vast majority of us anyway) is driven by biological sex.
Very interesting analysis. I have a question that follows from it though. Could an employer demanding that all colleagues put their preferred pronouns in email signatures, HR system etc amount to harassment of victimisation of an employee with GC or religious beliefs that prevented a person from doing so in good conscience?
I find these analyses fascinating and scenario 5 especially so.
In this scenario, you advise the employer to tell J he is not entitled to require his colleagues to use his preferred pronouns: he just has to live with the ‘misgendering’ and this applies not just to L but to all other employees. Indeed, if L was singled out for special dispensation, that could cause all sorts of issues – and would raise questions as to why and questions that HR would not be able to answer without exposing L.
But this stance has been adopted simply because L revealed her history to HR, so it turns on the fact that L was brave enough to do so. Yet there may be many others who might be in the same situation but who could not bring themselves to reveal their history. These women will be no different to L other than the fact they did not tell HR about their history (which, of course, they are entitled to keep to themselves).
Surely a responsible position by HR would be to assume they could well have female employees who would be (silently) placed in the same traumatic position as L even if had not been raised as an issue?
The only sensible way forward I can see is that employees are left to be free to use whatever pronouns they wish and that J will just have to learn to accept that.
Erm…actual Quaker, autistic, gender-critical, CSA-surviving woman here. Thank you, Naomi, for such an informative analysis.
I’ve received a very interesting message arguing – persuasively, and also from a position of considerably more specialist knowledge than I can bring to bear – that using pronouns at odds with a person’s sex can’t accurately be described as “ungrammatical.”
The point is that a sentence can be untrue, or nonsensical, without being ungrammatical. Chomsky’s famous example, “Colourless green ideas sleep furiously” is perfectly grammatical – even though incapable of bearing any sensible meaning. “Excited childs sleeped fitful.” might be an example of the opposite: perfectly intelligible and meaningful, but ungrammatical.
Now I’ve been made to get this distinction out and look at it, I think I agree that a sentence like “The flasher’s erect penis was clearly visible under her raised skirt” belong in the “colourless green ideas” category: there’s clearly something badly wrong with it, but the wrongness is of a semantic rather than a grammatical kind. That is to say, it’s about the meanings of words, not the way in which they are put together.
I don’t think this changes my argument in any significant way. Using “she” of a man (that is to say, an adult human male) is wrong – but the cause of the cognitive dissonance that flags its wrongness is to do with the meaning of the words, not the grammar with which they are put together.
It’s different for “they/them” – that, used of an identified individual, is both ungrammatical and confusing – it sets off little eddies of “how many of you are there?” perplexity in the reader or listener’s mind. And neo-pronouns are even more clearly ungrammatical.
I’m not a grammarian but surely the ‘rules’ of grammar require gender agreement between pronouns and subject/object?
I think there is a significance and material difference between something that is devoid of all meaning (the “colourless green ideas”-type constructions) and those that make sense but for the agreement of a gendered pronoun with the subject/object (such as “her penis”). No one can make any sense of the first (because it is complete nonsense) but we know what the second type is saying – even if we think it factually incorrect (but still nonsense).
The question of what usage is “wrong” in a non-grammatical way is a matter of opinion, or sometimes of particular speech regulations.
But your claim that the use of “they/them” for a named individual is “ungrammatical” contradicts the Oxford Dictionary, so I submit this claim is *objectively wrong* for the Queen’s English. It is fully grammatical, by modern authoritative rules, to use “they” for an individual; this use does not specify a gender.
It might be factually confusing for some people because they still remember outdated old grammar (compare the use of “I will go” being confusing for someone very old, who learned the language when “I shall go” was the only grammatically correct option). But the rules have been centrally updated. I submit that grammar is not a matter of opinion.
I like this definition of grammar. “Sentences . . . are simply the highest-level expressions of a language, and an ungrammatical string is a morpheme sequence which fails to constitute a meaningful expression of any kind.”
(Michael B. Kac, Grammars and Grammaticality. John Benjamins, 1992)
Read out of context and with no other indication as to the gender of the flasher other than that conferred by the reference to a penis, the sentence “The flasher’s erect penis was clearly visible under her raised skirt” suggests that that the penis was hidden under someone else’s skirt who was either a woman or a girl. Understood thus, the sentence makes grammatical sense but a different sense to that intended (namely the gender of the flasher).
The misgendering debate is really about the use of the terms man/woman (and thence he/she) by some people who use it to refer to physical characteristics and by others who use it to refer to what is in the subject’s mind.
Stonewall’s website defines “gender identity” as a person’s innate sense of their own gender, irrespective of physical characteristics- in other words, purely what is in the person’s mind. Disputes regarding language could in theory be avoided by using the term “physically a woman/man” if that is what is meant or “identifying as a woman/man” if referring to a state of mind. (Bowing to Stonewall would however require re-education of the whole population that “woman” on its own has a new meaning-just a mental one rather than a physical one).
As regards pronouns, a gender critical person could deal with a request by a person with a prostate who identifies as a woman to be referred to as “she” , by stating “I will of course refer to you as “she” in future and in doing so am conforming to the use of this pronoun to refer to what is in your mind, in accordance with the Stonewall definition of gender identity”.
This is just spelling out exactly what is going on.
The key point about use of language is that the question of safe spaces, on the other hand, is by some attempted to be elided with the use of language. But it 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 17 is not permitted to drive a car if physically under 17 or to buy alcohol if under 18.
A truly excellent explanation. Thank you.
What are referred to as grammatical rules marry up with the way people intuitively speak.
Thus, in the case of an unspecified gender e.g. ‘friend’ people naturally use ‘they’ in its singular form. However, when a person is named (identified) in a sentence then most people assume the speaker knows the gender of the individual referred to and expect them ( note the common usage of plural!!) to refer to the person by a singular pronoun and the use of a plural pronoun implies to most people plurality not singularity.
Forcing people to change the language they have spoken all their lives is an abuse of power.
People do not “intuitively speak” gendered pronouns; they learn to use gendered pronouns according to the physical, sexed facts of the world. Children learn to use “he/him” to describe boys (young human males), and “she/her” to describe girls (young human females). Similarly, children learn to use singular and plural pronouns as they experience the singular-ity and plural-ity of the world. Their acquisition of grammar is typically a process of over-generalization and correction following “testing” against the reality experienced.
Forcing children to use language that contradicts the facts of the world teaches them to disregard reality, to mistrust the evidence of the world, and to lie. None of which makes for healthy, balanced self-knowledge and self-confidence, or for honest and responsible citizenship, whether in the realm of the classroom or the workplace.
None of this is a matter of intuition. All of it is a matter of integrity.
Pronouns are based on sex. Period. Gender ideology is a religious belief with no basis in physical reality. Pronouns are the sacred words of the gender religion. Their intent is to force a knee bend and acceptance of that religion. Demanding that others use their choice of pronoun is compelling others to practice a religion that they don’t subscribe to. That is clearly harassment to those that don’t follow the gender religion. It’s that simple
Where I am from, the linguistic inconsistencies you are referring to are known as logical errors, and not necessarily issues of grammar. This is the world we live in – one that legitimises and demands language devoid of logic, and ultimately truth. What could possibly go wrong …
This article is very helpful as it sheds light on the otherwise ambiguous and difficult to understand law. And what we don’t understand, we tend to fear – what a convenient way to rule the masses… Please share more on the topic in relation to day-to-day use of language, i.e. The Protection From Harassment Act 1997, and how that relates to hate crime. I can relate to the Quaker example and I assume that, if presented politely, it is a valid response in informal (outside of work) scenarios?
“Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA”
Is this ‘legal advice’? Beware.
The police won’t be interested in that, nor will you intimidate them by quoting it to them Public Order and Harassment legislation would be invoked. If found guilty under the PHA there is a mechanism for the victim to seek damages. They tend to always be granted and the fines and damages had the limits removed some time ago. An unlimited fine just for the titillation of harassment? Okay ..
You GC do seem very keen to test in court, not only misgendering to harass, but other common tactics of the GC such as Deadnaming and pedophile slurs, to keep pushing the boundaries of civil behaviour. Good luck. GC judges like Bean and Knowles don’t grow on trees. SCOTTOW offers no haven, that comedic case highlighted that a poorly crafted case from either side, will be vulnerable on appeal, which has always been the case. It also showed us to hit you with appropriate legislation next time We learned from it. We learn every time. See you in court ✌️
Subtle, very subtle! “It also showed us to hit you with appropriate legislation next time We learned from it. We learn every time. See you in court”
I put it to you that the reason the EAT gave that explanation of what the judgement did NOT mean was that the members of the tribunal were very well aware of how their judgement would be portrayed by the anti-trans movement and by the popular press — and subsequent events proved them absolutely right.
The Appeal Tribunal finding dealt with one thing and one thing only: whether Forstater’s professed “belief” qualified as a “religion or belief” for the purposes of the Equality Act. It was not called upon to consider the question of whether Forstater’s behaviour was so offensive that it ranked as harassment.
But most of the publicity after the case did not mention that at all. The impression it sought to give was almost universally that misgendering was perfectly OK — that Forstater had been vindicated and anyone who felt so inclined was now free to carry on.
The Appeal Tribunal (quite rightly) pointed out that this is NOT the case. Misgendering might not always be harassment, but in many instances (particularly those where it has been prolonged and deliberate enough to get to court) it might be. And employers still have a duty to protect their employees from being subjected to it.