Naomi Cunningham recently published two articles on "misgendering" in the workplace. In the second she analyses different "misgendering" scenarios in the work place in light of the Maya Forstater ruling.
Is "misgendering" always harassment?
More on "misgendering"
A Quaker being confronted with this issue is her first example. (I'm quoting it in full, but the whole article is worth consideration. As is the first.)
J is a male employee who announces a female gender identity at work, will wear feminine-coded clothing from now on and use a new name. L is a female co-worker.
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.