Edinburgh Rape Crisis Centre’s appointment of a man to its CEO role is a shocking gesture of contempt towards traumatised women.
Mridul Wadhwa is the CEO of Edinburgh Rape Crisis Centre. The job was advertised as being restricted to women, under schedule 9 of the Equality Act 2010.
Although ineligible for the job as advertised, Wadhwa was appointed.
At this point I must digress briefly. I have written before about “misgendering” (here and here). In writing about Wadhwa’s appointment to this role, I will use the nouns and pronouns appropriate to his biological sex. I do not apologise for doing so. I do so because I am writing about a situation in which sex matters. I have a serious point to make, and I intend to make it as clearly and powerfully as I am able to; I am not prepared to obscure my message with misplaced politeness.
Single-sex spaces and services are permitted by schedule 3 to the Equality Act 2010, and jobs may lawfully be restricted to those having a particular protected characteristic by schedule 9. Because of the legal fiction that some men are women created by section 9 of the Gender Recognition Act 2004, if a job needs to be done by a woman for the privacy and dignity or safety of service users, then two occupational requirements will be relied on: to be (legally) a woman; and also not to be a transsexual person. (This is the language of the 2010 Act: section 7(3) defines “a transsexual person” as a person with the protected characteristic of gender reassignment.)
Edinburgh Rape Crisis Centre did not explain this subtlety in their job advert. They didn’t need to: they had said “only women need apply,” and the context should have made it clear to any reasonable reader that the job was not open to males, however they identified and whatever paperwork they might have. They would have been perfectly entitled to decline Wadhwa’s application, relying on Schedule 9. Wadhwa doesn’t have a GRC, so in his case it would have been a straightforward application of the requirement to be a woman: the Centre would have had no need to rely on an additional requirement not to be a transsexual person.
But they didn’t decline. They declared an occupational requirement to be a woman in their job advert; but when Wadhwa applied for the job, they waived it in his favour.
Discrimination claims?
No doubt the runner-up was a woman who was properly eligible for the role, and who did not get it because Wadhwa was given the job instead. That woman has not suffered direct sex discrimination: the reason she didn’t get the job was not because she’s a woman, but because Edinburgh Rape Crisis Centre decided to ignore the occupational requirement it had specified and give the job to a man instead. There might be some way to frame an argument that the runner-up had suffered indirect discrimination by saying that the failure to operate the occupational requirement properly was a provision, criterion or practice that put women at a particular disadvantage compared to men – but that is already sounding convoluted and unnatural, and I admit I lack enthusiasm to analyse it further. I don’t think it would succeed.
The position of a man deterred from applying for the role (or who applied but was rejected on grounds of his sex) is more straightforward. A candidate in this position has suffered direct sex discrimination, which ordinarily would have been sanctioned by the occupational requirement. But in waiving the occupational requirement for the benefit of Wadhwa, Edinburgh Rape Crisis Centre has at least arguably lost its protection. A discrimination claim must ordinarily be brought within 3 months of the act complained of, so it is unlikely that the Centre will now face a claim of this nature relating to the CEO post. But it appears intent on repeating the same error in its more recent advertisement for a Chief Operating Officer. That advert states that only women need apply, but also says:
“We are committed to a diverse and inclusive workplace and especially welcome applications from women of colour, trans women and disabled women.”
It seems, then, that Edinburgh Rape Crisis Centre proposes to apply the same modified occupational requirement – to be either a woman, or a man who self-identifies as a woman – to the role. It is not at all clear that it is entitled to do so, and an employment tribunal claim by a potential male candidate for the role who has been deterred by the schedule 9 stipulation must be a real possibility.
The Equality and Human Rights Commission’s role
By section 149 of the 2010 Act, public authorities are required to have due regard in exercising their functions to the need to eliminate discrimination, advance equality of opportunity, and (crucially for these purposes) to foster good relations between people who share a relevant protected characteristic and those who do not. The Equality and Human Rights Commission has duties to promote understanding of the 2010 Act, and to promote good practice; and by s.16 it has power to conduct an inquiry into any matter relating to those duties.
The EHRC’s answer to an inquiry about any action it intended to take in relation to the appointment of Wadhwa to the Edinburgh Rape Crisis Centre post was (after delay of over 12 weeks) as follows:
“The Commission has a number of regulatory powers. However, as you will appreciate, the Commission has limited resources and we must use our powers strategically. We consider our litigation and enforcement policy when deciding when to take legal action. The policy can be found here.
We have considered carefully whether taking formal action in relation to ERCC would be a proportionate and effective use of our powers. We have taken into consideration the fact that ERCC is a small third sector organisation, that the recruitment for the role in question has been completed and, if there is an unlawful act which is not clear, that the number of people who may have been adversely impacted in the recruitment process is limited [being men suitably qualified for the role and deterred from applying due to the advert specifying that only women need apply]. On balance therefore we do not believe that using our enforcement powers in relation to this matter is proportionate.”
Edinburgh Rape Crisis Centre’s misuse of its schedule 9 freedom to restrict a role to women has received wide public attention and has been the subject of many news reports. Its appointment of a man to its CEO role has operated – whether by accident or design – as a prominent show of strength: a demonstration to abused and traumatised women that there is no sanctuary for them where they can be sure that no men are present, and sure that no men are making decisions. The appointment was an inflammatory act that could scarcely have been more calculated to damage relations between women and trans people, and it was effected through a flagrant misuse of schedule 9.
It is true that the EHRC has many claims on limited resources, and has considerable freedom to determine how it will apply those resources; so any attempt to challenge that decision by way of judicial review would be an uphill struggle. All the same, it is bitterly disappointing that the EHRC does not regard this situation as sufficiently important to justify a use of its investigatory powers.
Conclusion
That’s the legal situation as I understand it. But in truth, the legalities of the situation are peripheral. What really matters is the concrete reality. The concrete reality looks like this.
Wadhwa is a man who has secured and continues to hold an appointment as CEO of a rape crisis centre that purports to provide an all-women space, to the profound dismay of many of its potential users (see e.g. Jo Bartosch’s account in her powerful piece in The Critic of the flood of responses from survivors that she received to a call for information; and this blog).
Wadhwa is a man who has prioritised his own needs over the needs of service users, and has brought his male body into a space that should be wholly controlled by women; entered only with their consent, freely given. He has done that despite vociferous objections from many of the women concerned. He has implicitly characterised service users who object as “bigots.”
No man should be made CEO of a rape crisis centre that purports to offer a female-only service; but especially not a man whose actions have demonstrated the open contempt for women’s boundaries that Wadhwa’s have.
Many people have been saddened and horrified by the sentence handed down to Sam Pybus for the murder of Sophie Moss. He had pleaded guilty to manslaughter, but not to murder, using the so-called ‘rough sex defence’ that his violence towards her, in this case strangulation, had at the outset been consensual. His plea to manslaughter was accepted and he was jailed for 4 years and 8 months.
A number of people have asked how a sentence can be reviewed as ‘unduly lenient.’ It is done through the Attorney General’s office. A template letter is provided here.
I am writing to you to request a review of the sentence of Sam Pybus, passed at Teesside Crown Court on 7 September 2021, as unduly lenient.
The sentence was one of four years and eight months imposed for manslaughter. Pybus had strangled Sophie Moss to death, while he was intoxicated. Although he said he could not remember what had happened, he entered a guilty plea saying it had occurred during consensual sexual activity.
The Sentencing Guidelines state that where death “was caused in the course of an unlawful act which carried a high risk of death or GBH which was or ought to have been obvious to the offender” the appropriate category for sentencing is Category B, high culpability, which carries a starting point of 12 years custody. It ought to be obvious to anybody that strangulation carries a high risk of death or GBH.
I would ask you to refer the sentence to the Court of Appeal as unduly lenient.
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.)
Scenario 1
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.
Scenario 2
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.
Scenario 3
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.
Scenario 4
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.
Guest blogger Ffion Lloyd writes for Legal Feminist on the Refugee Convention of 1951 and argues that persecution on the basis of sex should be formally recognised within it.
The 1951 Refugee Convention is a United Nations multilateral treaty, currently ratified by 148 countries. The Convention is the key legal document in defining who is a refugee, a refugee’s rights and the obligations on member states. The Convention sets out the bases upon which a person is entitled to refugee status: if they have ‘a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group’. The primary aim of the Convention is to safeguard the rights and well-being of refugees. In its efforts to achieve this aim, the Convention alongside the United Nations High Commissioner for Refugees (UNHCR), strives to ensure everyone can exercise the right to seek asylum and find safe refuge in other countries. However, despite these admirable aims, refugee rights are restricted due to the Convention reasons, arguably, being outdated (as per G S Goodwin-Gill and J McAdam, The Refugee in International Law (3rd edn, Clarendon Press, 2007) 86 – 96), because there is little or no explicit protection from specific abuses that only apply to women. As argued by Charlesworth and Chaiton in The Boundaries of International Law: A Feminist Analysis “the very nature of international law has made dealing with the structural disadvantages of sex and gender difficult.”
Historically, the protection of refugees was a matter of discretion dependent on the willingness of individual sovereign states. It included those who did not fall within any major international treaties, but who were deemed to have a valid claim to protection. In the 20th century refugee protection evolved domestically through ad hoc measures applied to new refugee groups, who were originally excluded from the Convention. This represented a positive development in human rights as it was the first of its kind to attempt to protect all refugees. Additionally, as interpretation of the Convention has varied, it has enabled countries to implement a degree of refugee protection alongside domestic laws. Nonetheless, the Convention has had fundamental flaws from its inception. One of the main historical criticisms of the Convention has been its enduring lack of protection of refugee women, who constitute half of all refugees.
Under the Convention, the Convention reasons of ‘social groups’ and ‘political opinions’ lack clarity. The Convention does not refer to sex as a ground for being afforded protection, an omission considered by some to be a failing of the Convention. The significance of this is that women are not expressly protected as falling within a Convention reason, despite high incidences of female genital mutilation (FGM), human trafficking, forced marriages and rape cases.
The World Health Organisation (WHO) defines FGM as “procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons”. It is a practice female refugees confront in their countries of origin and is one of the biggest problems facing female refugees. According to a UNICEF report (2020) 29 countries allow FGM and it is claimed 52 million females alive today have undergone FGM. However, the number of women and girls who have undergone FGM could be substantially higher, as reliable worldwide data is not available. However, because sex is not a Convention reason to recognise persecution, protection from this specific abuse is inconsistent under the Convention, even though it is recognised as a violation of female human rights, including freedom from torture and inhuman and degrading treatment, as well as right to health. FGM is a crime in many countries including the USA, the UK and South Africa where it is recognised as a form of violence against females. It causes long lasting physical and psychological harm and is in direct opposition to basic human rights.
This was demonstrated in the case of Fornah v. Secretary of State for the Home Department in which Fornah claimed she could not return to Sierra Leone because she would face gender-based persecution by being forced to endure FGM. Consequently, the UK House of Lords agreed “intact” women in Sierra Leone, who had not undergone FGM, constituted a particular social group, for the purposes of the 1951 Convention. However, because sex is not a Convention reason, each FGM claim will need to be assessed on its own, to establish whether women facing FGM in that particular country, at a particular age, from a particular tribe or background, constitute a ‘particular social group.’ If not, then the woman is not protected under the Refugee Convention although she may be able to access alternative humanitarian protection. Consequently, in my view, the Convention lags behind current global affairs because of the inconsistency of interpretation.
Baroness Hale stated in the case of Fornah that if the refugee definition was properly interpreted, it “can encompass gender-related claims.” On the other hand, despite the Convention allowing room for interpretation, under French refugee law, women who have already experienced FGM are not entitled to any form of protection. A third of the claims for refugee status in France have been made by females and of 36,720 applicants only 4,713 were granted refuge. Under French refugee law, the experience of past FGM is not regarded as constituting persecution, despite the risk of further FGM abuses. The assumed justification for this is that the mutilation is a single act that will not be repeated in the future and will not lead to further persecution. This line of reasoning was rejected in the USA in the case of Mukasey, in which the Board of Immigration Appeals held a woman who has been subject to FGM can be cut a second time. Despite this finding, France has not updated its refugee law.
The UK only recently had its first ever successful criminal trial on FGM. In February 2019 a mother was sentenced to 14 years in prison for performing FGM on her 3-year-old daughter. This case demonstrates, although countries are attempting to protect vulnerable women and girls, it is clear more needs to be done. Despite this case being a success for female equality and basic human rights, it is unsettling that the UK only recently successfully protected its most vulnerable females. This case highlights how slow the law is on offering protection to females, specifically female refugees.
Forced marriage has been acknowledged (in the phrase used by UNHCR) as a gender‐related form of persecution in some jurisdictions. Currently 117 countries allow forced marriages. Canada has accepted gender‐based grounds for refugee claims since the mid 1990’s, which includes forced marriage. Additionally, in TB (PSG – Women) Iran v. Secretary of State for the Home Department, the Immigration Appeal Tribunal held “young Iranian women who refuse to enter into arranged marriages” constituted a particular social group. Consequently, the appellant’s claim for asylum was upheld by the Immigration Appeal Tribunal as she would be persecuted if returned to Iran. Despite the Refugee Convention being written in 1951, certain countries have interpreted it to protect female refugees from specific abuses, such as forced marriages, highlighting it is possible to protect female refugees from this type of persecution. Nevertheless, despite the UK and other countries achieving great strides in human rights and acknowledging the specific abuses female refugees are subject to, it is becoming more apparent that more needs to be done. It is striking, that even post Shah and IslamUK, there is still no particular social group for women fleeing forced marriage, as the current Convention stands.
One of the main challenges facing the protection of female refugees from forced marriages is the domestic law and customs of the countries where forced marriage is legal. It is particularly notable that women’s education levels are a high factor when it comes to the forced marriages of female refugees. Educated women are better able to recognise their experiences as abuse, while less educated women may accept it as normality. A study in 2008 highlighted urban and highly educated women in Lebanon were ‘somewhat less constrained’ by social customs and ‘would not be subject to forced marriage, and if she were, could evade it.’ Consequently, the education of female refugees is paramount in reducing the level of risk they may face of specific abuses.
In recent years, international organizations have paid increasing attention to a particular problem affecting female refugees, human trafficking. Female refugees need more international protection from human trafficking. While not all victims of trafficking are refugees, depending on the circumstances, many victims of human trafficking qualify for refugee status. Female refugees are at particular risk of being victims of human trafficking. This is due to many factors, including their vulnerable status, the losses they have experienced and their displacement geographically. According to the UNHCR, trafficking risks for female refugees are increasing worldwide. Under the current grounds of persecution of the Convention, protection for female refugees from human trafficking is non-existent, meaning female refugees must depend on the domestic laws of the country they are in.
In times of conflict and chaos, female refugees are often pressured into work where they are exploited and abused. Prostitution is often one of the only ways female refugees can make money for their families. However, the voluntary nature of such work is questionable when there is no alternative source of income – and indeed exploitation of a position of vulnerability is recognised within the Palermo Protocol as a form of coercion. Individuals are at serious risk of falling into the hands of sex traffickers. This is compounded by the lack of protection for female refugees under the current grounds for persecution, forcing many female refugees into extremely dangerous situations.
To conclude, at the time of its establishment, the 1951 Refugee Convention made great strides in human rights, but now, as the world changes, the Convention’s deliberate gender-blindness is an impediment, rather than an asset, to justice for female refugees. As illustrated above, it is possible for countries to interpret the Convention so that ‘particular social group’ extends to protection against specific abuses that only happen to female refugees, but this relies on interpretation. In my view, interpretation is not enough: protection for female refugees should be a codified right, not a privilege at the discretion of the member state’s interpretation.
The current situation leaves room for instability and uncertainty, and uncertainty gives rise in turn to grey areas where female refugees are protected in some countries and not in others. To reiterate the words of Charlesworth and Chaiton “The realities of women’s lives do not fit easily into the concepts and categories of international law”. Perhaps it is time that those concepts and categories are re-moulded to allow them to do so. An amended Refugee Convention is overdue, as the unique needs of female refugees must be protected, and the empowerment and the equality of females supported.
Legal Feminist tweeted a short thread starting like this the other day:
It seems worth elaborating briefly in a blog, so here goes.
The first point to make is that the allegation made by @MotherCecily is unverified: I don’t know who she is, or who her husband is, and I haven’t seen the email or the agenda. But it will serve anyway as an example of the kind of thing that an employer might do.
It’s an extraordinarily bad idea. Any HR director tempted to organise training with this kind of content needs to catch up with the implications of the judgment of the Employment Appeal Tribunal in Forstater. Gender critical beliefs are capable of being protected under the Equality Act: that means that someone with gender critical beliefs is entitled not to suffer discrimination on grounds of those beliefs, or harassment related to them. That protection works in the same way as protection from discrimination on grounds of other protected characteristics: sex, race, disability etc. If you want to make this real – well, run the thought experiment, substituting in groups defined by other protected characteristics for “TERF” in “Be less TERF.” It looks pretty bad, doesn’t it?
The memo doesn’t seem to have circulated very far yet. Anecdotally, it seems that large numbers of gender critical employees are suffering various kinds of discrimination and harassment at work because of these beliefs, or even being disciplined by regulators and professional associations for expressing them. A rash of employment tribunal claims following in the wake of Forstater seems inevitable.
But harassing your gender critical staff through the medium of your diversity training is taking things to another level. It has various snazzy features as compared to common-or-garden workplace harassment.
First, it’s exceptionally efficient. You don’t have to bother to harass your gender critical staff individually. Instead, with a single document or training event, you can harass all your gender critical employees at once – even including those you don’t know about (yet). Bearing in mind the prevalence of active harassment of those who express gender critical views, there may be quite a few.
Secondly, it’s likely to be pretty bullet-proof. If you try to discriminate against staff members who express their views, there may turn out to have been something in the manner in which they did so that gives you a defence. But if you harass them at large, irrespective of whether they have said anything at all, there’s no possibility of running a defence of that kind.
Finally, connoisseurs of such things will admire the irony. If employment tribunals awarded points for style, being found liable for discrimination contained in your diversity training ought to get full marks. But if you’re an HR manager who’d rather not be awarded points for style (which an employment tribunal might possibly call “aggravated damages”), you should be careful not to expose staff to training of this nature.
The example given above is an extreme case, but employers should think seriously even about what may seem to them to be innocuous exhortations to “allyship,” like encouraging staff to wear a rainbow lanyard, or give their pronouns at the start of meetings or in their email sign-off, etc. The problem, in a nutshell, with pronouns and similar observances is that they are a public profession of belief. If you “encourage” your staff to profess a belief, you are in effect forcing them either to say a creed they may not believe (and which some may find profoundly menacing; for more on that, read this powerful blog), or else to decline to say it, and thus to confess their unbelief in an environment where unbelievers may be unpopular.
In “A practical guide to Transgender Law” (Law Brief Publishing, 2021), Robin Moira White and Nicola Newbegin have written a short book of ambitious scope: in fewer than 300 pages, they take in subjects as varied as discrimination, asylum, data protection, education, prisons, family law and sport.
The first point to note is that the book lacks a consistent sense of purpose, wandering between summarising the law, setting out statutory and non-statutory guidance and policy material, charting the development of the law and social attitudes in this area, and legal analysis. Perhaps as a result, its structure is choppy and repetitious: it’s not clear, for instance, why the Equality Act 2010 and the Gender Recognition Act 2004 get chapters to themselves as well as separate treatment in chapters on associations, education, employment and sport; or why “Prisons” (Chapter 15) is not treated as part of “Criminal Justice” (Chapter 6). The book is poorly proof-read, with minor errors sprinkled throughout the text and one instance where a section of nearly a page and a half appears in two different places.
The book’s defects of structure, clarity of purpose and editing might have been forgiven if the authors had been able to offer helpful insights on some of the undoubtedly tricky problems in this area. But the book is equally disappointing in almost all matters of substance. The chapter on data protection and confidentiality (Chapter 7) provides a competent summary of the law, as (for the most part) does Chapter 3 on the GRA; but the rest of the book suffers from a pervasive tendentiousness, coupled with legal analysis that is either weak or simply absent.
The first example comes before the book is even properly under way, in the terminology section at page xviii. The authors dismiss the binding judgment of the High Court in Corbett v Corbett [1970] 2 WLR 1306, apparently on the basis of the biologically illiterate claim that the existence of differences of sexual development undermine the distinctness of the categories “male” and “female”. This is unsupportable. Biological sex is an immutable and as a rule easily observable feature of human beings. In a small minority of those with certain rare DSDs, sex may be incorrectly observed at birth; but that fact no more undermines the male/female binary than the fact that individuals are occasionally prematurely pronounced dead undermines the alive/dead binary. As the Employment Appeal Tribunal has since pointed out in Forstater: “the position under the common law as to the immutability of sex remains the same; and it would be a matter for Parliament… to declare otherwise.”
Discussing what “man” and “woman” mean in the EqA, the authors say this:
“The EqA 2010 definition of ‘man’ is a male of any age and ‘woman’ is a female of any age’ (EqA s212). But without a definition of ‘male’ and ‘female’ this does not help. Is a trans male a male or a trans woman female? Is a trans woman something different from a woman? But a gay woman or a black woman are still women, why not a trans woman?”
There’s a sleight of hand here – whether conscious or not. The argument plays on the words of the question-begging neologism “trans woman” to suggest that “trans” is simply an adjective qualifying the noun “woman”, and therefore a “trans woman” is just another kind of woman. It does not admit to the true nature of what the authors are proposing, which is a radical extension of the meaning of the word “woman” – well beyond the natural meaning of a concept that is familiar in every language and has been for as long as humans have used speech – to include those men who think of themselves as women. For anyone who does not accept that trans-identifying males are women, the proposed parallel with “black woman” or “gay woman” will land badly. (For readers less familiar with these debates, it may be helpful to spell out that the term “trans woman” is frequently claimed not only by those who have taken all available surgical, hormonal and cosmetic steps to look as much like women as it is possible for them to do, but also by others who retain fully intact male genitals and sometimes even a beard, relying on nothing more than clothes and cosmetics to signal their essential womanhood.)
The authors also seek to construct an uncertainty about whether a person’s legal sex might change in the absence of a gender recognition certificate. This is fanciful. Biological sex can’t change, and the common law recognises that; and the mechanism for changing legal sex set out in the GRA is self-evidently exhaustive.
In the terminology section, at pp. xix-xxi, the authors quote at length from the speeches in the House of Lords in Chief Constable of West Yorkshire Police v A (no.2) [2005] 1 AC 51, acknowledging that Baroness Hale anticipated that the GRA would resolve these questions; but then seem to give up on the daunting task of analysing, by reference to the words of the Act, whether and if so how it has done so, preferring instead a hand-waving assertion that the authors cannot believe that a trans-identifying male who has transitioned early enough never to have developed through male puberty can really be regarded as a man in law simply because he lacks a gender recognition certificate. It is not clear why they think this, or what aspect of their hypothetical case they think is crucial. They seem to set store both by the length of time for which an individual has “lived as” the opposite sex and the degree of success with which he can “pass”.
Whatever their thought processes, they are clearly wrong. The House of Lords in A and Parliament in the GRA chose different solutions to the problem of who should be treated as having changed sex, and what the consequences should be when they were. The House of Lords chose exacting conditions (a complete or all-but-complete cosmetic appearance of the opposite sex: in the words of Lord Bingham, being “virtually and for all practical purposes indistinguishable”), but far-reaching consequences where those conditions were met. Parliament chose a much less demanding standard for issuing a gender recognition certificate, but also limited the effect of a GRC once granted. It is of course Parliament’s choice that is now the law.
Commenting in Chapter 3 (Gender Recognition Act 2004) on section 9 of the GRA, the authors say:
“[A]s far as the law is concerned, the holder of the certificate now has the gender stated on that certificate “for all purposes”. This provision dealt admirably with the original focus of the Act: pensions and the right to marry. It is still important in a number of areas including the fields of data protection and prisons (see relevant specialist chapters). The GRA itself contains a number of exceptions. The position in respect of the Equality Act brought into law only 6 years later is far from certain.”
This passage could be clearer, but the implication seems to be that when the EqA was passed, its interaction with the GRA was somehow overlooked, or inadequately worked out. Nothing could be further from the truth: the expression “Gender Recognition Act” occurs 14 times in the EqA and its explanatory notes, and the expression “gender reassignment” no fewer than 95 times. The relationship between the EqA and the GRA is both deliberate and intricate: no doubt there are some unintended consequences and difficult questions, but – particularly given that much of the relevant phraseology of the EqA is little altered since the Sex Discrimination Act 1975 – what is clear beyond any sensible doubt is that for the purposes of the EqA, “sex” means biological sex, except where modified for legal purposes by the operation of section 9 of the GRA.
At the end of Chapter 6 (Criminal Justice), the authors deal very briefly with searching under the Police and Criminal Evidence Act 1984. They quote from the Metropolitan Police Service’s “Transgender Policy” which purports to allow trans-identifying officers to conduct searches of suspects of the opposite sex, but notes that since non-binary identities are not covered under the Equality Act, officers and staff who identify as non-binary will not be permitted to search the opposite sex. The authors’ legal analysis of this policy is confined to the single sentence, “Authors’ note: the last answer may need to be revised in the light of Taylor v Jaguar Land Rover.”
This is inadequate. The policy quoted is unlawful insofar as it applies to intimate searches, since PACE s55(7) requires that “A constable may not carry out an intimate search of a person of the opposite sex.” The authors claim elsewhere in the book that, following Taylor v Jaguar Land Rover 130447/2018, “those with more complex gender identities are now held to be within the protected characteristic of gender reassignment.” There are a number of problems with this statement. First, a decision of an employment tribunal has no weight as precedent, yet White and Newbegin treat Taylor as if it were a binding authority. Secondly, having decided to undergo a process of reassignment and announced that decision, Taylor undoubtedly had the protected characteristic of gender reassignment on a perfectly conventional understanding of s7; so even if the judgment were capable in principle of being binding, it would not have the effect claimed. (Readers wishing to gain a fuller understanding of Taylor are directed to Maya Forstater’s excellent blog on the subject.) Third, and for the Criminal Justice chapter most pertinently, the fact that an individual has the protected characteristic of gender reassignment for the purposes of the EqA does not change their biological or legal sex. The authors do not explain how the EqA duty not to discriminate on grounds of gender reassignment could be thought to override the same-sex searching requirement in PACE.
In Chapter 8 (Education), the authors say this about toilets in schools:
Reliance is placed on the School Premises (England) Regulations (2012)… which specify the provision of separate toilet facilities for boys and girls over the age of 8 except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one person at a time. However, there is no definition of sex in the Regulations and whether a trans pupil can lawfully be excluded from the facilities which match their acquired gender is, as yet, untested… the question whether exclusion of a trans girls [sic] from toilets would be a proportionate means of a achieving [sic] a legitimate aim is untested in law.
Sex is not defined in the Regulations; nor (more relevantly) are the related terms “boys” or “girls”. But these are ordinary English words that require no definition. A child cannot be granted a GRC, so there are no ticklish questions about “legal sex” and “biological sex” to get into here: the child’s sex is and can only be his or her biological sex. If a trans-identifying boy (a “trans girl” in the authors’ preferred terminology) is admitted to the girls’ toilets, those toilets are no longer separate facilities for girls: they have become mixed sex. The Regulations require separate facilities, so boys (however they identify) must be excluded from the girls’ toilets, and girls (however they identify) from the boys’. Moreover, it is not clear what the authors think is the relevance of the question whether exclusion of a trans-identifying boy from the girls’ toilets would be a proportionate means of achieving a legitimate aim: no such test is identified in the Regulations, which simply make separate facilities mandatory.
Chapter 12 is devoted to the question whether gender critical views are a protected belief for the purposes of the EqA. It seems odd that the authors thought this narrow question merited a whole chapter to itself; but odder still, given that they did not think it worth waiting for the judgment of the Employment Appeal in Forstater v CGD Europe [2021] 6 WLUK 104, which at the time of writing they note was expected within a few weeks. The predictable result is that the entirety of their detailed consideration of the first instance judgment is already out of date.
At Chapter 15 (Prisons), the authors discuss the case of R (on the application of Green) v Secretary of State for Justice [2013] EWHC 3491 (Admin). The case was about the extent to which a man who was in prison for his part in the extended torture and murder of his wife was entitled to be supplied in prison with items said to be necessary to his recently-conceived desire to “live as a woman”. The judgment notes at ¶19 that he did not appear to have a diagnosis of dysphoria, and was reported to be “saying different things to different people”.
White and Newbegin summarise the essential facts and the outcome like this:
“Whilst it was recognised by the court that there was no question of her being required “to live as a man”, she was housed in a male prison and was refused items such as a wig (she was bald) and tights. The decision to refuse these items on the basis of increased risk in the prison community was upheld. The prison service said that tights could be used as a ligature and were easily concealed. A wig, it was said could be used in an escape attempt. The judge recognised the sensitivity of the position but upheld the decisions taken.”
Reading that, one might think the prisoner’s requests were modest and reasonable. But the authors’ “such as” turns out to be capacious. At paragraphs 27 and 47 respectively, the judgment describes more fully the problem and the nature of the risks:
“The particular problem asserted by the claimant is her access to prosthetic items – wigs, breasts and vaginas.”
“In relation to tights there is also a demonstrable security concern. The same applies to intimate prosthetics. With tights it is obvious they can be used for escape purposes and other dangerous illegitimate use. With intimate prosthetics the real issue of hiding items is pronounced. In order to alleviate this, the governor would have to institute regular and repeated intimate searches.”
If the authors’ sanitising account of the facts of Green is disquieting, even more so is their failure to mention a key part of the judge’s reasoning in the case. One of the issues was whether Green had suffered discrimination on grounds of gender reassignment, and there was argument about the characteristics of the comparator that should be used to test that question: should the comparator be a man who lacked the protected characteristic of gender reassignment, or a woman who lacked that protected characteristic? The judge did not think that a difficult question. As he put it (at paragraph 68):
Frankly, it is almost beyond argument that the only comparator is a male Category B prisoner at HMP Frankland… I find it impossible to see how a female prisoner can be regarded as the appropriate comparator.The claimant is a man seeking to become a woman – but he is still of the male gender and a male prisoner. He is in a male prison and until there is a Gender Recognition Certificate, he remains male.
This comparator question is of crucial importance to many of the contentious questions relating to the treatment of trans-identifying people. Both of the authors contributed to the Employment Lawyers Association’s response to the 2018 Government consultation on reform of the GRA, which (answering question 13 on single-sex and separate-sex services) describes the comparator question as going to the heart of the wider ideological debate about the nature of sex and gender. Their failure to discuss this aspect of Green is hard to comprehend.
Examples abound of analysis that is weak, tendentious or entirely missing, but one further instance is worth particular attention. At Chapter 9 (Employment), the authors comment on an example of a possible occupational requirement, given in the Explanatory Note to the EqA, to be a woman and not a transsexual person, even with a GRC, in order to work with victims of rape as a counsellor. They say this:
[C]are should be taken to note the word “might”. For example, the situation may well depend on how well the trans person “passes”: if it is not possible to tell by looking at / listening to a trans woman that she is transgender then it is far less likely that the genuine occupational requirement would apply as compared with, say, a trans woman who does not pass as well and in a number of respects still looks male.
The idea that “passing” is something that can or should ever be judged as a condition for employment is fraught with difficulty and embarrassment, both for anyone called upon to make such an invidious judgement, and for the trans person concerned. But even if that difficulty could be overcome, it doesn’t seem fanciful to think that the ability of a rape victim to detect when she is in the presence of a man may be heightened: her perception might not coincide with that of the manager. But more seriously than either of those objections, it should be self-evident that a rape victim who wishes to speak to a female counsellor should be granted that wish without question, and without any threat of subterfuge. It is difficult to imagine a more heartless message to convey to a rape victim than “The person you are sitting with, alone in a room, talking about your experience of rape, will either be a woman, or else a man who passes so well as female that you won’t be able to tell.”
Conclusion
If the objective of the book was to increase understanding of the law in this area, it must be judged an abject failure. Even a reader with little prior knowledge will be struck by the regularity with which the authors simply give up on the task of analysis:
“The law is, at present, hopelessly confused… Society (and lawyers and legislators) still have much thinking to do” (p.xxi).
“The position in respect of the Equality Act… is far from certain” (p.34).
“Legislation is urgently required to clarify these provisions otherwise case law will be needed to fill the gap” (p.55).
“There does not appear to be case law on the point…” p.58.
“Whether a school should intervene to act in a way apparently inconsistent with a pupil expressing their gender identity would appear to be legally untested” (p.101).
“Whether treatment of trans pupils such as excluding them from dormitory-style accommodation would be a proportionate means of achieving a legitimate aim remains untested” (p.102).
“…. these provisions provide no guidance” (p.209).
“… this will remain a controversial area in which further legal challenges may be anticipated.”
In some of these cases, there is genuine reason for uncertainty; in others, the law is clear enough, and the uncertainty imaginary. In both cases, readers looking for assistance will be disappointed by the authors’ repeated unwillingness even to attempt to provide it. If a pair of guides on a difficult mountain path were as consistently flummoxed as the authors of this book, their clients would be saying their prayers. In truth, there is little of either guidance or practical utility in White and Newbegin’s “practical guide”.
I am (even) more than usually grateful to the several “critical friends” from the Legal Feminist collective – and others beyond: you know who you are – whose characteristically vigorous and forthright comments and editing and have improved this review beyond recognition from its first draft.
Legal Feminist welcomes feminist blog posts from practising lawyers. In this post, guest blogger and paralegal Ffion Lloyd writes about the shocking growth of the incel movement and suggests the time has come to treat it as a terrorist movement.
We all know the phrase, ‘I know it when I see it’, when you may struggle to describe or pinpoint what ‘it’ exactly is, however, we all feel it and know where ‘its’ boundaries are. Schmid and Jongman described terrorism as acts committed for “idiosyncratic, criminal, or political reasons.” This definition includes mass attacks by non-ideological psychotics. The Crown Prosecution Service describes terrorism as “the use or threat of action… designed to influence any international government organisation or to intimidate the public” which is “for the purpose of advancing a political, religious, racial or ideological cause” and cites examples as including “serious violence against a person” “endangering a person’s life” and “creating a serious risk to the health or safety of the public or a section of the public”.
Despite these recognised and accepted definitions, there remain a number of organisations and groups in the UK which blatantly pose a threat to the safety and security of society and yet are not recognised by the authorities as terrorist or as holding terrorist ideologies.
On Thursday 12th August 2021 Britain witnessed its worst mass shooting in nearly a decade. A country that, since the Dunblane shootings, has successfully avoided the horror of mass shootings. We have prided ourselves on being the complete opposite to the USA when it comes to gun control. The UK has strict and rigorously enforced gun control laws; anyone caught in possession of an illegal firearm will face a mandatory minimum prison sentence of seven years.
But in spite of our tight gun control, two women, two men and a three-year-old girl were fatally shot in 12 minutes by a 22-year-old, self-identified ‘incel’. In the aftermath of this shocking event, use of the phrase “incel” had the media frantically seeking to explain what this right-wing, misogynistic ideology stands for. However, this is not a new term let alone a new group. A January 2020 report by the Texas Department of Public Safety warned that incels were an “emerging domestic terrorism threat” that “could soon match, or potentially eclipse, the level of lethalness demonstrated by other domestic terrorism types“.
Alongside that report, a 2020 paper, Studies in Conflict & Terrorism, published by Bruce Hoffman noted that the incel movement’s “core ethos entails the subjugation and repression of a group and its violence is designed to have far-reaching societal effects” and concluded that “the violent manifestations of the ideology pose a new terrorism threat, which should not be dismissed or ignored by domestic law enforcement agencies“. Yet despite these warnings, Jake Davison, a 22-year-old guy from Plymouth, was frequently and freely able to post YouTube videos, actively discussing his life failures and angrily complaining that the root cause of his insecurities and lack of sexual experience were the fault of women. More specifically, the lack of interest women had in him.
The Incel movement is an inherently misogynistic internet subculture that has reportedly led to over 61 homicide deaths since its founding. The term “involuntary celibate” arose in the 1990s and originally had no violent connotation. However over the last two decades, the incel community became increasingly misogynistic, blaming women and glorifying rape and violence against women. Then in 2014, Elliot Rodger murdered 6 people, and wounded 14 others, as part of what he called a “Day of Retribution” rooted in the frightening notion that women were fundamentally flawed and deserved death. Rodger went on to write his lengthy 133-page manifesto in which he rationalises the massacre of women. In his “ultimate and perfect ideology of… a fair and pure world,” all women should be “quarantined” in “concentration camps,” where he could “gleefully watch them die,” though some would be kept alive and artificially inseminated to perpetuate humanity. Following this event, pro-violent, internet subcultures have continued to grow and have resulted in several murders and attacks by men propagating this terrifying ideology.
Despite this, as the law currently stands in the UK incel ideologies are seemingly not regarded a dangerous enough to be classed as terrorism. In the past, extremist groups which have sought to overthrow the social order, the IRA, the LTTE and most recently ISIS, have been deemed terrorist organisations. Why is the incel movement any different?
ISIS provides a good case in point – it is recognised as representing a direct threat to the security of a country and its interests; the incel movement undermines democratic norms and values of equality and shares a number of similarities. They are male dominated, historically anti-women and heavily rely on the internet and online forums as a primary communication tool. While anti-women views existed long before the internet, subsections of the internet have accelerated their spread, expanded their reach and fuelled their women hating content.
The nature of attacks, perpetrated by violent radicalized groups such as the incel movement and ISIS, have a very gendered dimension which is predominately virtual and largely comprises young males. How can it be that one an illegal terrorist organisation and the other simply frowned upon, when at their core, they have such fundamental similarities? Does the fact that ISIS is founded in a religious doctrine make it fundamentally more dangerous? It is very hard to see why that should be the case. If that is the case, what is the difference? Are incels deemed less dangerous because they predominantly target women and not men? Does this somehow make them less of a threat to society?
If so, this is naive, given incel perpetrators have clearly shown that their attacks also target men, who are deemed attractive and lucky in life (‘chads’). More to the point, the suggestion that hatred of women is somehow less of a threat is also a terrifying conclusion. Violent attacks on women in general have been all too frequent items in the news in recent years, from the shocking assassination of Jo Cox to the brutal murder of Sarah Everard. The murder of Sarah Everard led to an outpouring of concern about violence against women. And yet despite those sentiments, society has not yet fully recognised the dangers posed by those who fundamentally hate women. Incel related violence is explicitly aimed at instigating an overthrow of social order.
Terrorism, I know it when I see it. When will the government?
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’tsay 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.
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.
Before and after the recent Forstater v CGD (2021) case, there was a torrent of speculative commentary about what this meant both for trans people and gender critical people when it came to harassment under section 26 Equality Act 2010.
On 27th April 2021, barrister Robin Moira White wrote in the Independent:
“It will mean, for example, that a person will be permitted to misgender a trans work colleague, indeed be legally protected if they do so. This puts employers in an impossible position where one employee is entitled to harass another, likely making the employer liable to the harassed employee for discrimination. It is both morally wrong and practically unworkable: employers will not be able to meet their duty of making workplaces safe to work in or public spaces safe to visit. “
Thankfully, this pessimistic prediction was proved wrong. The Employment Appeal Tribunal stressed that its judgment didn’t mean open season for people to harass trans people. It could have added “and the same goes for gender critical people.”
In practice, what Forstater established was that both gender identity theory and gender critical feminism are protected as beliefs under s10 EA.
But what does that mean in practice regarding protection against harassment? Is “misgendering” (calling a transperson by a pronoun that signifies their biological sex) or calling someone a TERF (an offensive term to many) or “bigot” unlawful harassment?
The classic and annoying lawyers’ answer… it depends!
So how to decide if something is unlawful harassment?
First of all, some important caveats: I am talking about civil law, not criminal law. This isn’t about hate crime or other forms of harassment (say under the Protection from Harassment Act).
This piece is not about whether it is right or wrong that something is considered unlawful harassment, but my best guess about what a court or Employment Tribunal will determine.
Context
This guidance is not relevant in all situations, only for those set out in the Equality Act. So it applies in work, education, political parties, larger membership organisations, some transport and some housing. It doesn’t apply between private people, say in the streets, unless one of them is working. That may be covered by other law, but is outside the scope of this blog. S29(8) states that, with regard to services to the public and public functions , neither the protected characteristics of religion and belief and sexual orientation are covered by the sections on harassment. ‘Harassing’ conduct related to religion or belief or sexual orientation which causes a detriment is covered by direct discrimination protection.
Which protected characteristics are covered?
Age, disability, race, sex, sexual orientation, gender reassignment and religion or belief are all protected against unlawful harassment. Marriage and civil partnership, and pregnancy and maternity, are not – although the latter is effectively covered against harassment via a different route in s17 and 18 Equality Act.
What does the law say ?
The Equality Act says the following:
“26 Harassment
(1)A person (A) harasses another (B) if—
(a)A engages in unwanted conduct related to a relevant protected characteristic, and
(b)the conduct has the purpose or effect of—
(i)violating B’s dignity, or
(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2)A also harasses B if—
(a)A engages in unwanted conduct of a sexual nature, and
(b)the conduct has the purpose or effect referred to in subsection (1)(b).
(3)A also harasses B if—
(a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,
(b)the conduct has the purpose or effect referred to in subsection (1)(b), and
(c)because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.”
So let’s break it down:
“Unwanted conduct” means the person alleging harassment didn’t consent to it. It is aimed at avoiding liability for genuine give-and-take banter. This does not mean the sort of bad defence used by obvious harassers to seek to exclude insults, but rather a hug between old friends, affection between consenting romantic partners, or a genuinely equal debate about politics in the canteen between colleagues, for example.
“Related to a protected characteristic” means you don’t have to have that characteristic to be harassed; but there must be a link between the words, actions etc and the protected characteristic. This sort of harassment isn’t about generic bullying.
“Conduct has the purpose or effect”. If the evidence shows the alleged harasser intended for the words or conduct to be harassing (usually determined as such because it is obvious for those words or conduct were the sort purposefully used to harass), that is then immediately proved.
If, instead, it is argued that, whether or not it was intended, the effect was harassing, then there is a further test in s26(4) Equality Act, as follows:
“(4) In deciding whether conduct has the effect referred to, each of the following must be taken into account—
(a)the perception of B [person alleging harassment];
(b)the other circumstances of the case;
(c)whether it is reasonable for the conduct to have that effect.”
In legal terms this is known as an objective, subjective test. The test is not just whether the claimant perceived harassment, but whether that is a reasonable perception. A person who is frequently late to work may feel harassed by their boss reminding them not to be late on consecutive days, but it would not be reasonable for the reminders to amount to harassment. On the other hand, a person who has ADHD but is rarely late may well be harassed by an employer singling them out every evening with the words “Remember to be on time tomorrow – we know how ditzy you ADHDers are!”
“Violating dignity etc”
This is exactly as described.. A court or tribunal needs to be satisfied that one of these descriptors could be applied to the situation evidenced.
In this piece I am not going to discuss s26(2) and (3), but it is worth noting the wording.
Very case specific
The result of this is that there are no glib equations to provide a bright line between conduct which is and is not harassment. It really depends on context and framing.
In the context of the gender critical/gender identity context, my predictions are that:
1. Simply wearing a rainbow lanyard or putting one’s own preferred pronouns in your emails at work will not amount to harassing someone else; but reporting someone to management who simply chooses not to, due to their beliefs, might well be harassment,
2. Setting up a Gender Critical or Gender Studies Research Group will likely not be an act of harassment; but campaigning against colleagues doing so might be harassment.
3. Responding politely with one’s own views to a consultation about single sex or mixed gender facilities will not be harassment; indeed complaining to management about someone about their polite answer might well be. In the case of Mbuyi v Newpark Childcare (2015), the Employment Tribual found in favour of Sarah Mbuyi, an evangelical Christian, who was dismissed by her employer, Newpark Childcare, for harassment following a discussion with a lesbian colleague in which Mbuyi said that homosexuality was a sin. The tribunal said that Mbuyi had not harassed her colleague as there was no evidence of unwanted conduct, because Mbuyi had given her views after being asked for them.
4. Calling a colleague a TERF or intentionally misgendering them may well be held to be harassment. This is distinct from accidental misgendering, because the choice of pronoun is unknown to the speaker or because the speaker’s disability causes them not to remember such things;
5. Discussing politely and personally on social media whether the law should be changed to self ID is likely not to be, unless there is evidence of risk that this may lead to actual discrimination or harassment. Some support for this contention is given in two cases not directly relating to harassment but addressing the risk of that happening going forward. The Court of Appeal in Ngole v Sheffield University 2019 (a case concerning an evangelical Christian student social worker who was expelled from his university course after expressing “Biblical views” on social media about homosexuality) said at para 129 “such a blanket ban on the freedom of expression of those who may be called “traditional believers” cannot be proportionate” . It was notable that the University had accepted there was no evidence of intention to discriminate against gay people by Ngole. This is in contrast to Dr Mackereth in DWP v Mackereth (2019) who made it clear that his particular Christian belief meant that he did have an issue using pronouns inconsistent with the service user’s birth gender [sic]. It later became clear that it also extended to using a title or style of address, Mr, Mrs, Ms, Miss etc inconsistent with the service user’s birth gender [sic]. Dr Mackereth failed in his claim. Whilst it is under appeal, my view is that an appeal is unlikely to succeed.
5. Proselyting to colleagues or service users about one’s gender critical or gender identity beliefs is likely to be harassment, in a similar way to cases involving religious proselytising like Haye v Lewisham BC (2010) and Amachree v Wandsworth Borough Council (2010)) .
In each of these cases, the judge considered the facts carefully and conducted a balancing exercise of the basis of the facts to determine whether the employer had properly considered the employee’s right to manifest their belief. In those cases where the employer’s decision was upheld, it was generally because of the actual discriminatory impact of the employee’s actions on other people.
These cases also demonstrate that similar issues can be dealt with through good employer practice and employees understand what is expected of them. An employer can have a policy which places limits on discussions about religion or belief at work, but any restrictions on freedom of speech or manifesting religion or belief must be proportionate to achieving aims like protecting the rights of others or the reputation of the employer.
So if confronted with a complaint or grievance by someone alleging unlawful harassment, what sort of questions should you ask to determine if conduct amounts to harassment?
1. What was the context in which the alleged conduct occurred?
2. What does the complainant say happened?
3. What evidence is there of the consequences of the conduct on the complainant or others?
4. Why do they say it has the effect they claim? This goes to context.
5. What does the respondent say happened?
6. What are the relative power positions of the two?
7. What do any witnesses say?
8. Is there any other relevant evidence?
9. What do your office policies say about social media use, and what is deemed misconduct or discriminatory behaviour? Do those policies balance freedom of speech, belief and private life with legitimate employer concerns like risk of harassment of colleagues or service users?
10. Have there been previous warnings against this conduct and when?
Having gathered all this information, and weighed up whose evidence is more credible, it is for the decision maker to decide whether each of the allegations are more likely than not to have happened, and if so, to determine sanction.
Employers and service providers also need to check their policies and Equality and Diversity training materials to ensure there is no harassing content in there.
In summary, there is no simple equation of X=harassment but Y does not. Ultimately, it is a fact-specific exercise, where freedoms of speech and belief are balanced against the necessity to protect from harassment in the workplace.
