One of the particular joys of being a lawyer is that many assume that regardless of your specialism, you are able to opine on ALL the law. In common with many lawyers, I love being asked what I think about things, even if that thing is an area of law in which I do not specialise, but which I have had many opportunities over the last three years to learn more about. Immediately following on from the judgment in Maya Forstater’s case, the same question was repeatedly put to me – but what are the implications now if we ‘misgender’ someone at work?
So I thought I might as well have a bash at an answer. As stated, I am not a specialist employment or discrimination lawyer so please do not treat this as legal advice. But my lack of specialism is a deficit I share with large numbers of people who will now have to grapple with the judgment and its implications. We await either firm guidance from the EHRC or for Forstater’s case to return to the Employment Tribunal, to determine if she was discriminated against for her now protected belief, or if her former employer will claim the refusal to renew her contract was justified by her alleged harassment of colleagues.
I hope, probably in vain, that this judgment opens the door to calm and reasonable discussion about its implications, so that we can all find a better way to ensure that all our workplaces are free of unlawful discrimination, harassment and bullying. These conversations are an important corrective to those who opine that this decision was ‘inconsequential’ – as if any judgment of an appellate court could ever be! No court wastes time on ‘inconsequential’ appeals.
Regardless of what happens to Forstater at any further Tribunal hearing, the consequences of the EAT about protected belief ruling are hugely significant. Women who wished to discuss sex based oppression or their rights to the safety and dignity of single sex spaces had been told that their views were ‘not worthy of respect in a democratic society’. The EAT restored our dignity as human beings with views that must be respected and essential in a pluralistic society. Along with the decision in Miller v College of Policing, it represents a necessary and welcome return to rationality and the rule of law.
Hold up - so can I chose whatever pronouns I like at work?
TLDR: No. But using the ‘wrong’ pronouns won’t necessarily mean you are sacked. We are now left with the difficult issue – unpacking what does this actually mean for women at work, who feel very strongly that to refer to a person with a male body as ‘she’ is not something they could ever bring themselves to do, in any context? Each case is going to be highly fact specific. Can we identify any general principles from the judgment that may help?
Both sides at the EAT were criticised for making ‘hyperbolic and intransigent’ argument – one asserting it was ‘Orwellian’ to compel a woman to refer to a male person by a female pronoun versus the suggestion from the other that ‘misgendering’ was inherently an act of harassment. The EAT was alive to the vulnerability of trans people, but it was the function of Parliament to determine if additional protection was needed. What is clear is the finding that protecting ‘gender critical belief’ under the Equality Act did NOT give a green light to “indiscriminately and gratuitously refer to trans persons in terms other than they would wish. Such conduct could, depending on the circumstances, amount to harassment of, or discrimination against, a trans person.”
We therefore have our first steer - the more ‘indiscriminate’ and ‘gratuitous’ the misgendering, the more likely it is to amount to harassment or discrimination.
The likely difficulty is going to be the extent to which it is argued that any form of ‘misgendering’ is inherently wrong. The more a tribunal is inclined to accept an argument that ‘misgendering’ is inherently discriminatory, the more likely it is that any kind of conversations around sex and gender risk being seen as harassment or discriminatory.
The definition of ‘transgender’ used by the EAT is “to refer to those persons whose gender identity does not correspond to their sex at birth and who identify with another gender”. It referred approvingly to the Equal Treatment Bench Book which considered the term ‘transexual’ both dated and stigmatising.
And here we trip over the first big rock in the road; the conflation of ‘sex’ and ‘gender’ again operates to confuse and alienate. We were on firmer ground with the term ‘transsexual’. It meant someone who had gender dysphoria and was very committed to ‘changing sex’ – to the extent that they would consider surgery to modify their body. ‘Transgender’ has a much wider ambit, including under the ‘Stonewall umbrella’ men who make no changes to their bodies whatsoever, who retain male genitalia and facial hair or who wear ‘women’s clothes’ intermittently.
I am prepared to accept that ‘misgendering’ of a gender dysphoric transsexual who had been living for decades in their chosen sex, would be likely to impact on that person’s sense of self far more grievously than it would upon a person who adopted various gender identities on various days of the week. Depending on what source you examine, there are either 211 genders, over 400 or even infinite numbers. What is ‘misgendering’ actually going to mean?
Para 37 of the EAT judgment sets out the Respondent’s argument, which rejected robustly any such distinction between the transsexual and the ‘gender fluid’, urging a finding that misgendering necessarily amounted to harassment, ‘enormous pain’ and hence a violation of Article 8 rights. This was true even for people like Philip/Pips Bunce who lived part of the week as a man, the other as a woman. Philip/Pips was described as having a ‘complex’ gender identity. Philip/Pips helpfully signals his/her movement between the male and female states by swopping a sober suit for a pink body con dress and fishnet tights, so arguably it would be very clear to his/her colleagues if this was a Philip or a Pips day. But what of those with ‘complex gender identities’ who wish to dress more consistently androgynously? Would genuine confusion from work colleagues as to which gender was uppermost on which particular day, necessarily be harassment?
I think the answer from the EAT would clearly be ‘no’ – such a slip would be neither ‘gratuitous’ nor ‘indiscriminate’ in those circumstances.
The Respondents went as far as to argue that ‘if the appeal is allowed, it would mean that no trans person would be safe from harassment in the workplace by a person holding gender-critical belief, and that no employer or service provided could take action against such a person to maintain a safe space for trans persons. It would also create a two-tier system with natal women having greater rights and protection that that afforded to trans women’
But as Forstater made clear and the Tribunal found, she would usually use preferred pronouns but reserved the right not to do so where she considered that to be relevant. The only evidence of “misgendering” appears to have been in relation to an incident described at para 89 of the Judgment and concerning Gregor Murray”
Forstater described Murray as ‘he’ without realising the preferred pronouns were ‘them/they’. Given that Mx Murray appears in photographs to be a bearded man, I suggest one may be forgiven such a slip. I do not see how this could rationally be described as either ‘harassment’ or ‘discrimination’ unless Forstater stood at their desk repeatedly shouting ‘he, he, he’.
The middle ground occupied by Forstater is in my view, the only sensible place to be. We all have to live in this world together; sometimes we have to hold our noses and make compromises we do not like. However, I think it is clear that a battle is going to continue to wage on between two extreme positions. Some will refuse in any context at any time to refer to a male bodied person as ‘she’, considering it an affront to material reality and an example of compelled speech. Some will continue to assert that any kind of ‘misgendering’ in any context is necessarily vicious harassment. Both sides are entitled to believe whatever they want as the EAT noted, subject to ‘only a few modest, minimum requirements’. But both sides are going to have to think carefully about how they manifest their respective beliefs in the workplace. I suggest that either extreme should not find favour with an employment tribunal as both have the potential to create hostile and unpleasant working environments.
The EAT put some flesh on those bones of ‘gratuitous’ and ‘indiscriminate’ at para 99
…the GRA does not compel a person to believe something that they do not, any more than the recognition by the State of Civil Partnerships can compel some persons of faith to believe that a marriage between anyone other than a man and a woman is acceptable. That is not to say, of course, that the Claimant can, as a result of her belief, disregard the GRC; clearly, she cannot do so in circumstances where the acquired gender is legally relevant, e.g. in a claim of sex discrimination or harassment. Referring to a trans person by their pre-GRC gender in any of the settings in which the EqA applies could amount to harassment related to one or more protected characteristics1 ; whether or not it does will depend, as in any claim of harassment, on a careful assessment of all relevant factors, including whether the conduct was unwanted, the perception of the trans person concerned and whether it is reasonable for the impugned conduct to have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the trans person. A simple example of a situation where referring to a trans person by their pre-GRC gender would probably not amount to harassment is where the trans person in question is happy to discuss their trans status or is sympathetic to or shares the Claimant’s gender-critical belief
I suggest it must be permissible to talk about the reality of sex when it is directly relevant to the issue at hand – looking at provision of single sex spaces at work for e.g. So long as the work colleague requesting I refer to him/her by particular pronouns is not assuming or expecting that by doing so I reject the immutablity of biological sex, will abandon my wish for single sex spaces, or will forgo my rights to talk about this outside the workplace, then I will do my best to honour that request. I have no wish to be rude or cause pain. But equally others have to accept that their desire for validation cannot automatically override the rights and freedoms of others.
There is nothing inherently abusive in misgendering. Much will depend on context and the key words will be ‘indiscriminate’ and ‘gratuitous’. Exercising our rights to protected political speech in public, is unlikely to be either. And this simple but powerful statement is the clearest possible evidence that the judgment of the EAT is not remotely ‘inconsequential’.