pronouns -

After Forstater: elephants and elephant traps

This is the text of a talk I gave on Wednesday evening to employment law solicitors at my Chambers.

I should start by acknowledging the elephant in the room. I broadly share the belief that lost Maya Forstater her work with CGD: namely that biological sex is real, important, immutable and not to be conflated with gender identity. We’re not going to be discussing the substance of that belief except tangentially, but inevitably there are various respects in which the position I take will affect the way I talk about my understanding of the law.

As ever: views my own.

Staying with the elephant theme, the question I want to address is: “what are the main elephant traps for your clients in this area, and how do they avoid them?” I’m going to address that partly by reference to five cases that have been fought to a conclusion in the ET or on appeal over the last couple of years. So first, a quick outline of those cases.

The five cases

An employment tribunal held in December 2019 that Ms Forstater’s gender critical belief was not protected under s.10 of the EqA because it was “not worthy of respect in a democratic society” (or “WORIADS” as it’s come to be known). In June 2021, the EAT allowed Ms Forstater’s appeal, so that the case could be heard on its merits. In July this year, the ET held that CGD’s decision not to renew her contract had been because of her protected belief, and was therefore unlawful direct discrimination.

In Mackereth, the EAT upheld a tribunal’s decision that the DWP’s treatment of a medical assessor who refused to use the preferred pronouns of service users was not discriminatory.

In Bailey v Stonewall Equality Ltd & ors, the barrister Allison Bailey sued her chambers and Stonewall for belief discrimination. She won part of her claim against her chambers and lost other parts. She lost the claim against Stonewall, and is appealing that part of the tribunal’s judgment.

The other two cases are V v Sheffield Teaching Hospital (which Anya Palmer has written about in more detail here) and Taylor v Jaguar Land Rover. In V, a tribunal upheld the claimant’s complaint that questioning him about his habits in relation to wearing underwear at work was discrimination on grounds of gender reassignment. He had been seen naked from the waist down in a women’s changing room. In Taylor, a tribunal found a number of complaints of harassment and direct discrimination proved by a trans-identifying male employee.

Between them, these five cases shed quite a bit of light on the elephant traps I want to talk about.

The elephant traps

The “social media policy” fallacy – treating some beliefs as more equal than others

All beliefs that pass the 5 Grainger tests needed to qualify for protection are of equal status. Employers are entitled to ask their employees not to proselytise at work; and they will often be entitled to place some restrictions on their employees’ public statements outside the workplace. Exactly how far those restrictions can go will depend on a range of factors – the ease with which the employee can be identified as such, her seniority; the nature of her role, and so on. Judges and civil servants can be required to keep pretty silent, in public, on matters of political controversy; supermarket checkout staff not so much.

There has been quite a lot of comment on Forstater to the effect that CGD’s difficulties could have avoided if only they had had a robust social media policy in place.

There are two problems with that. The first is that Forsater’s engagement, though direct, was pretty measured. That means that any social media policy sufficiently restrictive to silence her on the subject of GRA reform would have had to be draconian across the board. If it had singled out “gender critical” engagement for prohibition, that would have been discrimination just the same. You can’t make discrimination disappear by making it your policy to discriminate, and then saying you acted as you did not on the prohibited ground but in obedience to your policy. An employer could in theory decide on the draconian route, and just purport to put all political or contentious social media engagement out of bounds. But trying to enforce such a draconian policy would be likely to have a high cost in both management time and industrial relations. And an employer that dismissed for breach of such a rule might well find it hard to defend as consistent with the employee’s article 10 right to freedom of expression, which will be part of “all the circumstances” a tribunal has to consider when ruling on the fairness of a dismissal.

On the other hand, if an employer writes a draconian policy but only enforces it reactively when staff members or third parties take strong exception to the expression of particular views – well, the problem with that should be obvious. Effectively you’d be letting the mob decide which opinions may be expressed. If the mob discriminates, you discriminate.

A related elephant trap may be concealed in a more limited neutral-looking policy. Suppose your policy says something like this:

You must not make any social media communication that could damage our business interests.

It looks even-handed and fairly light-touch. But if what this formula really means is that employees mustn’t express unfashionable views because third parties might object, that won’t preserve the employer from a finding of discrimination. A more familiar parallel may help make this vivid: an airline can’t get away with saying, “Well of course we know that women make perfectly good pilots, but we don’t employ women to fly planes because our passengers wouldn’t feel safe and would vote with their feet.”

So what should social media policies look like? I’d suggest that a sensible policy for most organisations will simply ask senior and middle-ranking employees to make it clear that the views they express are their own, and to express themselves lawfully and reasonably courteously in any event. There’s nothing conceptually difficult about that, though an organisation faced with a social media pile-on may be called upon to hold its nerve.

That takes me to my next elephant trap.

Running scared

This was illustrated by CGD’s conduct after Maya Forstater started to engage in the debate about the proposal to reform the GRA to bring in self-ID.

It’s notable from the evidence quoted in the judgment that some managers were initially nonplussed: they weren’t sure what all the fuss was about. One even admitted at an early stage that he wasn’t sure whether or not he agreed with Forstater. But as the campaign against her intensified, and they became aware of internal reactions to her tweeting described by one witness as “visceral”, they fell into line.

Their problem seems to have been a disinclination on the part of managers to look behind claims to be offended by Ms Forstater’s tweets, and make up their own minds whether she had said anything genuinely unacceptable. The high-water mark of the evidence against her was that she had described a man known sometimes as Philip Bunce and sometimes as Pips Bunce as a part-time cross-dresser in the context of a discussion about whether he should have accepted an award for women in business.

“Cross-dresser” is a term that can be found in many LGBTQ+ organisations’ glossaries, and Bunce is a man who sometimes but not always cross-dresses at work – so for my own part I find it difficult to see what was wrong with Forstater’s description. But that’s not to say it was completely fanciful to think her phrase a bit rude: the tribunal itself was split on that question, EJ Glennie and Mr Miller taking the view that it was uncomplimentary and dismissive but not in all the circumstances inappropriate or objectionable; the third member, Ms Carpenter did think it objectionable although that didn’t affect Ms Carpenter’s view of the result in the case.

Sensible managers would have given the complaints short shrift. Employees are not entitled to demand that their employers protect them from having to work with people they disagree with – or even with people who are sometimes a bit rude about third parties on social media.

That leads to my next elephant trap.

“Bring your whole self to work”

It’s become fashionable for HR policies to talk about making everyone feel pyschologically safe and able to bring their whole selves to work.

This may be some of the worst advice ever given to employees.

None of us should bring our whole selves to work. It’s perfectly fine to be an enthusiastic amateur opera singer, ju-jitsu practitioner or free-climber on your own time – but if you sing opera, wrestle your manager or literally climb the walls at the staff meeting, it won’t go well. Mr Pay, the Claimant in Pay v Lancashire Probation Service was dismissed because of what he did on his own time. If he had brought his whole self to work, it wouldn’t have taken the full intellectual heft of the Court of Appeal to spot that dismissal was fair.

More seriously: this kind of messaging is calculated to lead employees to expect to be allowed to police their colleagues’ beliefs and opinions. That’s not going to work in a diverse society. Maya Forstater’s belief that the differences between male and female bodies sometimes matter seem to have been bitterly offensive to some of her colleagues – but no doubt the opposing belief that men can be lesbians, and women and girls are not entitled to any reliable privacy from men was bitterly offensive to her. You can play the same game with many irreconcilable beliefs. An ethical vegetarian may think I am little better than a murderer because I eat meat; a religious colleague may think I am destined for hell because I don’t believe in God, an environmentalist that I’m a vandal because I drive a car.

That’s all ok – or it should be. These kinds of incompatibilities of belief may sometimes make friendship difficult, but they shouldn’t impede working together, provided everyone respects everyone else’s freedom of belief, conscience and speech.

So the message for employers is: don’t write policies that give employees the impression that they can expect their colleagues to share their beliefs, or even pay lip-service to them. But do make sure that employees don’t proselytise or try to impose their own beliefs on others in the workplace.

Of course, elephant traps are not just there for employers. The next one is for employees:

Being a martyr

Dr Mackereth was employed by the DWP to make medical assessments for the purposes of disability-related benefits. He was a Christian whose rejection of genderist beliefs had biblical roots. He made it clear in the course of his induction that he could not in conscience use pronouns for service-users other than those indicated by their sex.

The DWP sought to explore with Dr Mackereth the parameters of his position, seemingly with a view to retaining his services if it could, but Dr Mackereth resigned – saying that he believed he was being dismissed – while that process was ongoing. The EAT confirmed that the tribunal had permissibly found that the DWP’s conduct had been a response not to his beliefs but to the way in which he had indicated he was determined to manifest them.

Dr Mackereth seems to have jumped early on to the conclusion that he was bound to be dismissed, and to have been unwilling to engage constructively with the DWP’s attempts to find an accommodation. It’s not obvious that that was necessarily a lost cause: Dr Mackereth was willing to use clients’ preferred names, and in 1:1 meetings you might think it wouldn’t be too difficult to swerve the question of pronouns altogether.

If you are advising an employee at an early stage of a dispute of this nature, I suggest there are four key lessons from Mackereth:

1. Stay calm, and assume your employer is acting in good faith until the evidence to the contrary is overwhelming.

2. Don’t force matters to a head: be open to pragmatic work-arounds that respect others’ conscience and belief as well as your own.

3. Decide on your own red lines and communicate them clearly; but – crucially –

4. Don’t jump before you are pushed. If someone is going to decide that your beliefs can’t be accommodated in the workplace, leave it to your employer to make that decision.

That takes me to my final elephant trap:

Confusing the right not to suffer GR discrimination with a right to be treated as the opposite sex

The case that illustrates this is V v Sheffield Teaching Hospitals NHS Foundation Trust. It’s first instance ET decision, so it has no value as precedent – and in any case it is in my view pretty obviously wrong. But it serves as a cautionary tale.

V, a trans-identifying male, applied for a job as a catering assistant. He was given permission to use the women’s toilets and changing and showering facilities from the start of his employment, and his female colleagues were told that that was what he would be doing, and given bespoke training – before V started work – that seems to have been designed to ensure that they didn’t raise objections. The judgment of the ET is silent as to what if any medical treatment he had undertaken, but it is clear from how matters developed that he was obviously male.

V resigned a little over a year after he started work, and made a number of complaints against the hospital, including complaints of gender reassignment discrimination.

He made a number of complaints. The only one that succeeded arose as follows. In June 2021, there was a report to a manager that V had been seen naked from the waist down in the women’s changing room. On a previous occasion he had remarked to a colleague that he was hot and sweaty and had taken his underwear off, making a wringing motion with his hands. A manager asked him in a meeting about whether he was in the habit of removing his underwear, and the tribunal found that that question was asked because of his gender reassignment, and was to his detriment. He therefore succeeded to that extent in his complaint of discrimination. All his other complaints were dismissed.

My elephant trap is evident in the behaviour of both the hospital, and the tribunal.

The tribunal approached his complaint of discrimination on the basis that if he had not been a transsexual, he would not have been asked whether he was in the habit of removing his underwear. The comparator used by the tribunal is what it calls a “cisgender woman” in a similar state of undress.

If V had had a gender recognition certificate, there would be a respectable argument that a woman would be the correct comparator; though I think the better view is that even so, the correct comparator is a man who is not trans. But there is no suggestion in the judgment that V had a GRC, and on the assumption that he didn’t, the tribunal certainly chose the wrong comparator. If you want to know whether V was asked the question because of his trans status, you need to think how the employer would have treated a man who was not trans who was seen naked from the waist down in the women’s changing room.

I think the same error underpins the hospital’s approach to V’s use of the women’s facilities. It seems to have assumed that to deny him the right to do so would have been discrimination on grounds of his gender reassignment, and unlawful. But it would have been neither. If he had been excluded – like any other man – that would not have been because he was trans, but because he was a man. It would not have been sex discrimination because there were equivalent facilities for men. And it could not have been unlawful indirect discrimination on grounds of gender reassignment because it was obviously justified in the interests of protecting the privacy and dignity of his female colleagues, and complying with the obligation under the Workplace (Health Safety and Welfare) Regulations 1992 to provide separate male and female facilities.

It’s my view that this is the legally correct answer to the toilet conundrum: the women’s facilities in a workplace are for the use of women only, and trans-identifying males should be permitted to use either the gents’ or a single-occupancy unisex toilet. And that rule should be applied irrespective of whether a trans-identifying male has a GRC or what if any medical treatment or surgery he may have had: his female colleagues are entitled to have their privacy respected.

But my view isn’t without its vulnerabilities. In Croft v Royal Mail, the Court of Appeal ruled that a pre-operative transsexual had lawfully been refused use of the women’s toilets, but also suggested that at some stage of his transition he would have to be treated as a woman. Unfortunately the judgment doesn’t then offer employers the slightest assistance in identifying when that stage is reached. That was in 2003. By 2018, an ET in Birmingham felt able to treat it as self-evident that refusing a trans-identifying man use of the ladies’ was unlawful discrimination even in circumstances where – as is spelled out in the judgment – he had had no surgery and had no intention of undergoing any in the future. That case, Taylor v Jaguar, was a first instance judgment, and in my view clearly wrong in this respect – but it was not appealed.

So what is the right advice for an employer faced with the toilets conundrum? How does it minimise the risks of being sued?

The only truly safe option is the kind of facilities that we have here in Chambers: single-occupancy toilets which may be badged as male and female, but for which there’s really not much problem if someone uses the toilets for the opposite sex – anyway provided they aim straight, and raise the seat if appropriate. But suppose what you have is separate halls of cubicles separated by flimsy partitions; and one or two single-occupancy accessible toilets? Suppose that for reasons of cost or space or both you can’t remodel them. If you let a trans-identifying male use the ladies’, your female staff may sue you. If you offer him the use of the accessible toilets instead, he may sue.

I have nothing very comforting to say here. There’s no binding case law. The remarks in Croft are both Delphic and obiter. And whatever you do, someone’s going to be furious with you.

I think the best I can offer employers faced with a toilets or changing rooms problem is to suggest that should do what they think is right. That sounds trite, but if you’re likely to end up in court whatever you do, you might as well at least take a decision that feel able to defend wholeheartedly.

If an employer is struggling to form an intuition about what doing the right thing looks like, a good start might be to start not by telling its female staff how they ought to feel about sharing intimate spaces with a trans-identifying male, but asking them how they do feel. Given the climate of fear that’s been generated about admitting you don’t think men can literally become women, it’s probably a good idea to do that anonymously.

Notes, questions and some links.

I am grateful to Andrew Allen KC, who shared this event with me and provided a very helpful summary of the legislative background and the case law. This blog only reflects what I said.

There were questions about pronouns in email signatures, and “misgendering”. For more on those subjects, see

Is “misgendering” always harassment?

Grammar and grievance

A tweet from Legal Feminist disagreeing with Acas advice on pronouns provoked a storm…

[image: taken from the illustrations to the Screwtape Letters]

In civilised life domestic hatred usually expresses itself by saying things which would appear quite harmless on paper (the words are not offensive) but in such a voice, or at such a moment, that they are not far short of a blow in the face… You know the kind of thing: “I simply ask her what time dinner will be and she flies into a temper.” Once this habit is well established you have the delightful situation of a human saying things with the express purpose of offending and yet having a grievance when offence is taken.
CS Lewis, The Screwtape Letters (in which an experienced Devil coaches his nephew in the art and science of temptation)

The other day, Acas tweeted out the suggestion that putting pronouns in email signatures could help create a more open and inclusive workplace. Legal Feminist disagreed:

There followed a storm of engagement, unprecedented for the Legal Feminst account: over 600k impressions, over 500 quote tweets and nearly as many retweets. I think the quote tweets in particular are revealing, and they are the main subject of this blog.

But before I get to that, I want to explain the context a bit; this will be old hat for many of my readers.

The gender war: a quick primer

There are two sides in this war. They call each other various names, but we can call them sex deniers and gender criticals.

Sex denialism claims that sex doesn’t matter. Whether you’re a man or a woman depends not on your body, but on your inner sense of identity. A male person who says that he is a woman should be treated, referred to – and even thought of – as a woman for all purposes; and vice versa. Various things follow. If a man wants to join a support group for female survivors of male sexual violence, then provided only he says he’s a woman, he must be welcomed in. If a man with fully intact male genitalia wants to undress in the women’s changing area at the swimming pool, anyone who objects is a pearl-clutching prude and a bigot. If a mediocre male athlete wants to compete in women’s events and start breaking records and winning medals, the women should move over. If a male doctor wants to identify as a woman, his true sex is none of his patients’ business – even where intimate examinations are concerned. If a rapist decides he’s a woman and wants to be moved to a women’s prison, that’s his right too.

Gender criticals think biological sex does sometimes matter: for healthcare, for safeguarding, for everyday privacy and dignity, for fairness in sport, and so on. They think sex is determined by whether you have a male or a female body, and that it’s no more possible literally to change sex than to change species.

The attentive reader will have noticed that the “gender critical” viewpoint is made up of commonsense propositions that until about ten minutes ago no sensible person – whether on the political left or right – would have dreamed of contesting. The sex denialist beliefs are novel, and surprising.

Pronouns

So where do pronouns come in?

This takes us to the manner in which sex denialism has been promoted. You can’t defend irrational beliefs with reason. By and large sex deniers don’t try: instead, their strategy has been to attempt to leapfrog over the usual campaigning, lobbying, arguing, persuading phases of bringing about profound cultural and legal change, and to pretend instead that the desired outcome is already accepted by all right-thinking people – and to silence dissent by visiting dire consequences on anyone who questions that claim. That, I believe, is the whole reason for the vitriol and toxicity that surrounds this subject. Anyone who points out the absurdity of propositions like “some women have penises” must be howled down as a bigot, shamed, no-platformed, hounded from her job, kicked off her course, etc. That way, any doubter who lacks an appetite for martyrdom will be persuaded to steer clear of the whole debate – and insist if pressed that this subject is all too complicated and toxic, and they simply haven’t found the time or head-space to form a view.

The more insidious part of the strategy is the first part: the pretence that the contentious propositions that form sex denialism are already accepted without question by all educated, right-thinking people. Sex deniers make determined efforts to weave their claims seamlessly into our language and the fabric of our workplace culture, with the aim of converting contentious claims into the kind of tacit knowledge that doesn’t even need to be stated or formulated.

Acas’s advice

So what does Acas mean when it says announcing your pronouns can help create a more “open and inclusive” workplace? Inclusive for whom, and how? Your colleagues and work contacts will mostly know whether you’re male or female, if they need to. If you have an androgynous name and you particularly want to announce your sex, adding a title after your name will clear up any ambiguity with much less accompanying baggage than pronouns. But why do we even need to do this? Those who reply to my emails don’t need to know whether I am female or male. The truth behind pronouns is that their “baggage” is the point. The mechanism by which pronouns are supposed to make the workplace more open and inclusive is that they demonstrate your support of sex denialism, but without requiring you to say anything explicit. They bolster and entrench the idea that gender identity is more important than sex, while maintaining the appearance of a trivial, harmless courtesy.

That’s why I think our tweet was right. The claims of sex denialism are far from universal: on the contrary, they are bitterly contentious. By putting pronouns in your signature you raise a flag that aligns you publicly with one side – and against the other – of the gender war. If you’re a Catholic pupil at a school in Glasgow where “No Pope!” is the standard greeting (I am not making this up – I have it on reliable authority that it’s an example drawn straight from life), you’re put to an invidious choice: either play along – or out yourself as a Catholic or Catholic-sympathiser. No doubt the greeting makes the environment feel welcoming and inclusive for the children of Rangers supporters; less so for young Celtic fans.

Given the bitterness of the dispute – and especially given the many occasions on which gender critical individuals have had their jobs, their livelihoods or even their physical safety threatened – being put to the parallel choice by pronoun rituals is not going to make the workplace feel open and inclusive for gender-critical employees.

An accidental behavioural experiment

Are you feeling sceptical? Thinking maybe I’m overreacting, over-interpreting a harmless bit of politeness? I sympathise. When I first came to these debates, that’s what I thought, too. Why’s everyone getting so het up about language? Can’t we just be polite – can’t we use the words preferred by people who care passionately about words, and focus on what matters?

If that’s where you are – re-read the short extract from The Screwtape Letters at the top of this blog, and consider the manner in which the original tweet has operated as an accidental behavioural experiment.

On the face of it, it’s quite a dryly techie tweet from a legal account, disagreeing with a bit of HR advice from Acas. But it’s had an extraordinary level of engagement: at the time of writing, nearly 700k impressions, hundreds of retweets and quote tweets, and nearly 3,000 likes.

So what’s going on? Why has it attracted so much attention?

I think the clue is in the quote tweets. They’re almost all hostile, and Twitter is a rage engine. Most fall into one of two categories: either words to the effect “What’s your problem with this trivial courtesy? Get a life!” or else “Ha ha nasty TERF bigots deserve to feel excluded and fearful.” I’ve done a rough-and-ready analysis, sorting about the hundred or so of these quote tweets into categories. I counted 66 that fell into the “ha ha nasty terven” category, 26 into the “harmless courtesy” camp – plus two that agreed with the original tweet and a few I couldn’t easily classify.

The typical HR response to any push-back against pronoun rituals is of the “harmless courtesy” flavour. Why, they ask, are you making such a big deal of this little thing? Why can’t you just be kind and polite like everyone else? Or at least not make an ungracious fuss if your colleagues want to be kind and polite! If you argue that pronoun rituals are an attempt to make a particular highly contentious belief system seem so mainstream that it can be treated as the default – and shame anyone who doesn’t subscribe to it – you’ll be met with polite bafflement. “What makes you think it’s that? It’s just a trivial courtesy that will make a marginalised group feel a little bit more comfortable. How much can it possibly cost you?”

This type of response was well represented in the sample I looked at. Here’s a typical one:

This is a perfectly understandable take from decent, well-intentioned people who haven’t given the matter a great deal of thought. But it’s hard to sustain in the teeth of the evidence provided by the other, much larger category of quote tweet. There are more than twice as many of these as from team “harmless courtesy”, and they make my case for me vividly – sometimes in unmistakably menacing terms. Here’s a small sample of that type:

This was a reply, not a quote tweet

The first of these is admirably clear: “MAKE THE BIGOTS STFU [for the pure in heart, that translates “shut the fuck up”]. THAT’S THE BLOODY POINT.”

This is the heart of the matter. A handful of responses of this type might have been explained away as the bad behaviour of a few hotheads. But the numbers involved make that impossible to sustain.

A clear majority of the hundreds who have engaged with this tweet by quote-tweeting it are saying in terms that the point of including pronouns in email signatures is to make “TERFs” feel excluded and fearful.

The quote tweets have vividly dramatised both aspects of the technique recommended by Uncle Screwtape in the extract at the start of this blog: one group (Zoë Irene et al) boasting that they are indeed saying something with the express purpose of giving offence – while the other group takes on the role of maintaining a sense of grievance when offence is taken.

Expressing loathing and contempt for those who hold gender-critical views may be fashionable; it even seemed to have a degree of judicial sanction until the first instance decision in Forstater was corrected on appeal. But the lesson from the judgment of the Employment Appeal Tribunal in Forstater needs to sink in. Gender-critical beliefs are within the protected characteristic of “religion or belief” (so too, probably, is sex denialism); harassing or discriminating against your employees on grounds of their protected beliefs can prove expensive. One of the things to be taken into account by a court or tribunal in determining for the purposes of a claim under the Equality Act whether conduct has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them is whether it’s reasonable for it to have that effect. The fate of this tweet could itself provide telling evidence.

Yet More On Misgendering

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.

Don’t be that employer

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.

More on “misgendering”

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

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

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

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

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

“Misgendering”

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

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

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

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

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

That’s worth some unpacking.

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

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

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

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

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

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

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

Quotation marks in the EAT’s judgment

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

“misgender” (double quotation marks): 5

‘misgender’ (single quotation marks): 2

misgender (no quotation marks): 7

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

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

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

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

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

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

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

Some scenarios

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

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

Scenario 1

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

Comment

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

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

Scenario 2

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

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

Comment

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

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

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

Scenario 3

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

Comment

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

Scenario 4

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

Comment

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

Scenario 5

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

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

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

Comment

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

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

Scenario 6

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

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

Comment

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

Scenario 7

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

L’s response is as above.

Comment

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

Scenario 8

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

Comment

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

The Protection From Harassment Act 1997

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

Conclusion

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

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

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

Pronouns: Compulsion and Controversy

BBC employees are being “encouraged” to put pronouns at the end of their emails and we look at the possible issues here. Is that a kindness that only a misanthrope could oppose, or is there more to it?

Compelled speech

The first issue is that of compelled speech. Pronouns are not neutral. The move towards declaration of pronouns presupposes that everyone “has pronouns”; which is to say that everyone has an inner gender identity, and being described by the pronouns he / him, she / her, they / them, zie / zem, or something else is an expression of that identity. It also suggests that there may be repercussions for failing to remember a colleague’s preferred pronouns.

This is a highly political position. At the moment, the law recognises two sexes (male and female) through s.212 Equality Act 2010, and that a person can change their legal sex from one to the other by operation of the GRA 2004. There is also established case law which recognises that a person’s gender can be central to their private life protected by Article 8. The law does not lay down that a) everyone has a gender or b) that gender is innate.

The concept of gender identity entered the legal lexicon with the Yogyakarta Principles. These Principles do not carry legal force, but have often been adopted as a convenient shorthand. They were drafted in response to global discrimination and persecution of LGBT people. The definition given of gender identity is this:

We can see two things from this: first, that it assumes that each person does have a deeply felt internal and individual experience of gender. Secondly, that it rather correlates to the Equality Act definition of gender reassignment, envisaging a process which may include medical modifications, rather than a simple declaration.

But the more commonly used definition in the UK is that provided by Stonewall through their training. You can see that Stonewall depart from the idea of reassignment altogether (it is described as “a term of contention” in their glossary). Here are their definitions of gender and of gender identity:

What does this mean? Three things: a) that everyone has an “innate” sense of gender; b) that “culturally determined” masculinity and femininity is innate to males and females; and c) that those who reject their culturally determined gender are at odds with their sex, while those who embrace it are aligned with their sex, and are “cis.”

This is a political, and controversial, perspective. There are many people, male and female, across the political spectrum, and across sexual orientations, who regard it as problematic. It is a particular issue for those women who reject culturally determined femininity as oppressive and sexist, and for whom the idea that it is innate to most women – and by extension, that for those to whom it is not innate are not fully women – is nothing more than reinforcement of harmful stereotypes.

It is from the belief that gender is innate that the drive to announce one’s pronouns stems, because pronouns then become an expression of individual gender rather than a convenient linguistic replacement for a proper noun.

Insisting that employees put pronouns into their signature therefore leaves women who do not accept innate gender theory in a dilemma. They must either comply, aligning themselves with a political position they disagree with; or else reveal their political views in the workplace, which carries a risk of adverse consequences. We know that the popularity of innate gender theory means that those who take the contrary view may be visited with vile abuse, reported to their regulator, complained about to their employer, or even fired – so a woman who opposes innate gender theory may nevertheless feel obliged to comply through fear of losing her employment or being socially ostracised.

Some will suggest that this is acceptable – that to reject the notion of innate gender is so repugnant that those who do so must expect to face adverse consequences. They may point to EJ Tayler’s judgment in Maya Forstater’s case that gender critical beliefs did not qualify as a protected characteristic under the Equality Act 2010 for that reason. There are two answers to that. The first is that a first instance employment tribunal judgment has no weight as precedent, and this particular judgment is under appeal, and seems likely to be overturned. The second is that there is a great difference between disciplining an employee or treating them adversely because they voluntarily express opinions that they know to be controversial on the one hand, and forcing employees to sign up in public with a political statement that they may find profoundly objectionable.

A belief that gender identity is innate may also be quasi-religious; the concept that each of us has an inner being, a soul, which is gendered, contained inside the mortal flesh which has a reproductive sex that may not match that gender. As the MP Layla Moran said, “I believe that women are women…. I see someone in their soul and as a person. I do not really care whether they have a male body.”

It has long been held that the freedom to believe is matched by the freedom to disbelieve, not just for outright atheists but also ‘sceptics and the unconcerned;’ as per §31 of Kokkinakis v Greece (1994) 17 EHRR 397:

“As enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”

Freedom to disbelieve in the context of political, not just religious, scepticism was considered in RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38. The Court commented that “As regards the point of principle, it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs…. One of the hallmarks of totalitarian regimes is their insistence on controlling people’s thoughts as well as their behaviours.” The Appellants, who were politically indifferent, were protected as they could not be expected to assert loyalty to the Zanu-PF regime in Zimbabwe against their true views.

RT (Zimbabwe) was cited in the more recent case of Lee v Ashers Baking Company Ltd & Ors (Northern Ireland) (Rev 1) [2018] UKSC 49 (often described as “the gay cake case.”) The bakery could not be compelled to ice a message “with which they profoundly disagreed” onto a cake. It is difficult to see how an employee could be compelled to align themselves with a perspective with which they profoundly disagree in their email signature.

Sex Discrimination

The next issue is whether a female employee encouraged or compelled to declare pronouns could legitimately argue that this discriminates against her, directly or indirectly, because of her sex.

We know that sexism in the workplace is far from over. Conscious or unconscious bias operates against women. This example, from 2017, illustrates the point: when Nicole and Martin swapped email signatures, they learned that “Nicole” would be perceived as far less competent than “Martin” by clients. Without that sexism, if Nicole truly had been less competent, she would still have been regarded as such when signing off as Martin – and yet that is not what happened.

In 2019, the Royal Society of Chemistry undertook an analysis of gender bias publishing in the chemical sciences. It recognised that biases were “subtle” and could be “inadvertent.” Women were invited to review less often, their work was more harshly received, their initial submissions more frequently rejected. These “small biases” led to a “significant cumulative effect.”

The RSC are not the only organisation to have done such research. Others have found similar results, and of course there are numerous articles spanning the last decade or more which find that CVs with a female name get poorer results than the same CV carrying a male name. CV writing services recommend against including gender on the CV – a practice which used to be common and is now recognised as archaic. Race is also a factor – although for now at least, nobody is suggesting we declare our race at the bottom of email signatures.

And it is not just the recipient of the email who may be unconsciously biased against a female sender. The female sender herself may be subject to ‘stereotype threat.’ This is where a person is reminded of membership of their group and then under-performs; for example, women who were told that women do worse than men in maths tests then really did perform significantly worse in a maths test than women who were told there was no difference in performance (Cordelia Fine, Delusions of Gender, p.32-33). Even being reminded of one’s own sex at the beginning of a test can have the same effect (ibid, p32).

It would seem that women who are compelled to declare female pronouns in their signatures may be vulnerable to stereotype threat and also to unconscious bias on the part of the recipient of the email, thereby entrenching those biases further.

This does not mean that any woman whose workplace initiates a pronoun policy has an automatic, unassailable, claim. An employer might defend the claim by arguing that they are aware of the negative impact on women but that it is justified as a proportionate means of achieving its legitimate aim of trying to create an inclusive work environment. Argument and evidence would then centre on balancing the potential harms and benefits of the policy. It would be relevant, for example, if the employer was already struggling with recruitment and retention of women, or if there were a male / female disparity in sales commission. The ‘compelled speech’ aspect of the policy would also be relevant to this balancing exercise.

Summary

It should go without saying that if an employee is beginning gender reassignment and wishes their colleagues to use a different pronoun for them, they should be supported to do so. There are rightly prohibitions on victimisation and harassment on the grounds of gender reassignment. That person may wish to send an email round-robin with their news, or may wish to have their pronouns in their email; an employer should not prevent that. However, when the BBC’s guidance suggested that all employees should put pronouns in their signature, and said “It’s really simple,” that was, we suggest, premature, and may be experienced as coercive. And when they speak of “creating a culture where everyone feels comfortable introducing themselves with pronouns” they should also consider whether they might be inadvertently creating a culture where those with the she/her pronouns experience discrimination as a result of their sex.