What is the law regarding "misgendering" in the UK?

[cromeyellow0]

Many people assume that the law compels us to use preferred pronouns.

This is not explicitly stated in the Equality Act 2010. Possibly one could interpret failure to use someone's preferred pronouns as harassment, but that seems like a stretch to me (hopefully someone with legal expertise can give proper insight!).

Mermaids and perhaps some police forces want to treat misgendering a crime--to get ahead of the law, as the Labour Party would say.

To quote Susie Green: “We had to get the police involved because a young student was being regularly misgendered by his tutor. The tutor dismissed it until he was informed that it counted as a hate crime.”
www.pinknews.co.uk/2018/02/24/a-charity-called-the-police-on-a-teacher-who-misgendered-their-student/
(Ms Green's legal qualifications aren't known to me. Nor do we have the police's or the teacher's account of this incident.)

Interesting @R0wantrees. I've just written to Liberty as follows:

I'm interested to know about your organisation's stance on the question of so-called "misgendering".

Some people (especially radical feminists but not exclusively so) insist that a male can never change sex, even if he takes a woman's name and wears feminine clothing and makeup, ingests oestrogen, or even has his genitalia removed and a "neovagina" surgically fashioned. In consequence, they may insist on using male pronouns.

Arguably, this would constitute a crime under section 26 of the Equality Act 2010, as "misgendering" can be construed as harassment against a person who has the protected characteristic of gender reassignment.

I'd be most grateful if you could tell me your organisation's view on this issuenot the legal question, but the question of principle. Whose rights should prevailthe freedom of people to express their views on sex, or the freedom of people to have their identities upheld by the state?

Thanks!

I don't know what the law is currently but I agree with Karen Ingalia Smith.

@CircleSquareCircleSquare: cis people aren't protected under the Equality Act. Only people who are proposing to undergo or are undergoing gender reassignment. So you can be as rude as you like about your cisters

So saying the sex of women as a class is protected wouldn’t work here?

That's fascinating @Speedy85, I had no clue that this was actually being enforced. Where can we find details of these cases?
Most of them are Employment Tribunal cases. I'd struggle to dig up links quickly, although you might be interested in the case referred to in this thread in which 'deadnaming' and various other things were (IMO rightly) considered harassment.
www.mumsnet.com/Talk/womens_rights/3174416-Transgender-person-wins-Employment-Tribunal?pg=1&order=
I'd really like to link to one of the cases I was involved as I can easily recall the name of it but I don't want to reveal who I have worked for.

What's your opinion on this aspect of the law?
It seems fair enough to me. I think if you don't want to call someone by their preferred pronouns because you disagree with the notion that people can change sex then it's not too difficult in theory to just use something gender neutral like 'they' instead of 'he'/'she'. I don't think the courts would consider that harassment.

I do think the courts will need to allow a certain degree of leniency for accidents though as people can make slips of the tongue.

There are other areas of the law concerning trans issues which I do find problematic, but it just seems like there is an obvious solution here which allows people to remain gender critical whilst still treating people fairly respectfully.

Agreed 0phelia!

I think that would be a hard case to make in court Elletorro. I suspect that 90% of women have never heard of cis, 9% think it's wonderfully progressive, and only 1% find it objectionable.

A better stand to make would be refusing to refer to Ian "Nicola" Huntley (if reports are to be believed, I suspect the facts are still unclear) as she. I think in that case 99% of the population would be onside.

A couple of things on harassment:

1. It has to be a 'course of conduct,' so misgendering somebody once is incapable of amounting to harassment whereas repeatedly and determinedly misgendering the same person could

1. There was acknowledgement after the statute came into force that, taken at its lowest, if you read the words of the statute literally then ordinary human disagreement could qualify. There is now an authority that should be read in conjunction with the statute which holds that behaviour must also 'be so bad that it is criminal,' ie beyond petty irritation, annoyance or argument. The problem with this is that it is still subjective, and up to the CPS to decide at charge and bench to decide at trial what behaviour is 'so bad that it is criminal.'

Apologies, I should have specified that I am talking about criminal not civil harassment.

Arguably, this would constitute a crime under section 26 of the Equality Act 2010
I don't want to be a pedant here but the Equality Act is civil law - is it's all about suing people for money, not crimes.

I don't know much about criminal law but I mentioned the Protection From Harassment Act earlier and there are some bits in the Gender Recognition Act which IIRC mean that it's a crime to reveal that someone has a gender recognition certificate.

Thanks again @Speedy85, I missed that thread. I would say that "misgendering" was a small part of that case, the bulk was nasty bullying.

I'm hypothetically thinking of a person who is polite and respectful but simply refuses to use preferred pronouns. Perhaps the solution as you say is to use "they". I just think it's problematic both practically and philosophically to enforce pronouns, because they are so deeply embedded in our linguistic unconscious.

One could compare the feminist demand in the late 20thC to replace generic use of 'Mankind' or 'he' with neutral formulations. This was achieved through moral suasion and not through legal sanctions.

.

Yup Equalitt Act is referring to things like Equality in the workplace. It does not in any way impose criminal sanctions on anyone who misgenders anyone else. At least amend that in your letter to Liberty.

As a pp said, use gender neutral pronouns if you work with someone and don’t want to call them she. However, if you repeatedly insist on calling them he and you are dragged before an employment tribunal, your view that using certain pronouns oppresses your rights as a woman are unlikely to take you far. And rightly so in my opinion. Everyone has the right to dignity in the workplace and someone’s right not to be upset at work is actually of greater importance than a very tenuous argument that treating someone with dignity suppresses your own rights.

If you misgender Ian Huntley, that is not a crime. Nothing will happen to you. Literally nothing. You don’t work with him and have nothing to do with him and there is no criminal offence of misgendering. So you are not being forced to do that.

I think this detracts from the main issue which is to reinforce the current protections under the Equality Act to preserve single
sex spaces and to resist any changes to that law. If you start writing to human rights organisations about how your rights are being violated by having to call a person a particular thing when you have misunderstood what the law says, then it will make people think you are transphobic.

Back in the day, passing well enough not to be misgendered was the transwoman’s responsibility, and one they took pretty seriously because managing their dysphoria depended upon it. The modern variety don’t give a fuck if they pass or not, and so shovel the responsibility of misgendering onto everyone else. I miss the good old days. You could have a chat about how shit the GRC process was, how shit gender stereotypes were, and both sides dealt with reality. Now they are trying to tell me it’s illegal to tell the truth and that gender stereotypes have replaced sex in law. Where’s the fecking tardis when you need it.

Transphobia is a new word. A phobia is a fear but it is being interpreted differently. No one should be criticised for having a fear of something...many people suffer from phobias, which they can't control.

Yeah although most of the time you won’t be working with the TRA types. I would wager that the majority of them don’t have jobs. You can call them what you like without consequence (apart from getting banned on twitter). However, if someone you work with is trans and you are asked to call them she instead of he and you refuse to do so because it denies your truth, then it’s likely a tribunal will not come down in your favour. And surely your truth would be being denied even if someone has had surgery and ‘passes’? They are still biologically male.
If in doubt, use gender neutral pronouns.

Phobia is used here in the same way as homophobia, lesbophobia, islamophobia etc. It’s been in use for a long time I believe. Unless someone is saying they have a genuine fear of trans people?

For example, I don't think it should be legal for anyone running any sort of public business to refuse to serve or deal with people because they are gay, of a particular ethnic minority, or trans

But even something like this, which on first reading seems totally reasonable, can't be a blanket rule - otherwise you get the situation where a transwoman sues a salon because the female member of staff won't wax male crotches. - Now I agree, that refusing to wax a lesbian's crotch, or some other woman's crotch should be in breach, but trans causes an issue because it's a denial of material reality - the lie in it breaks this otherwise totally sensible equality law, and means we need to start adding exceptions so that sex can be taken into account in some circumstances, and it all gets rather messy

Disturbingly yes I agree that there needs to be some balance where it is lawful to refuse access to some selected services on the basis of natal sex for safety or dignity reasons. However, I don’t think the ‘I believe in biology so I will call a man a man’ is a particularly strong argument where there is evidence that it violates another person’s dignity.
But yes, rape crisis centres, refuges, medical or other intimate treatment should be single sex based on safety and dignity. Insisting on calling a trans colleague or pupil ‘he’ when asked to use ‘she’ should not be protected imo. I have no sympathy for that religious teacher who did that for instance.

According to the Metropolitan Police misgendering is definitely a hate crime (as long as someone thinks it is)

A Hate Incident is any incident which the victim, or anyone else, thinks is based on someone’s prejudice towards them because of their race, religion, sexual orientation, disability or because they are transgender

Evidence of the hate element is not a requirement. You do not need to personally perceive the incident to be hate related. It would be enough if another person, a witness or even a police officer thought that the incident was hate related

www.met.police.uk/advice-and-information/hate-crime/what-is-hate-crime/

As an aside, why are most of the protected characteristics not covered by this

Yes. Where there already is a crime. As an aggravating factor. Not by itself. I don’t have a huge issue with that. If someone assaults a trans person and uses trans slurs showing they were motivated by transphobia, that’s cool with me. Same as if someone commits a racially motivated crime.
Some people are arguing in favour of misogyny being a hate crime too. I guess male violence against women is so ingrained though that people don’t see it as out of the ordinary 🙁

But what if I feel that being compelled to lie or accept that men can redefine 'woman' as fits them violates my dignity as a woman? That's a protected characteristic too.

Indeed. Maria Maclachlan's treatment in the courtroom struck me as humiliating and bullying, and apparently the only time her attacker smiled in the dock was when Maria was compelled to refer them as belonging to the same sex as her even though their male physiology (height/arm-length) worked against Maria's female physiology in the attack.

Obscurring sex like this affects perceptions.
'Granny bashing' is associated with young male hooligans, instead the attack was referred to as a 'scuffle' and a 'brawl' when reported because the sexes of the attacker and victim were made to look the same with these liguistic lies.

It is humiliating and degrading to make a woman pretend a male is the same sex as her.

You'd have to bring a test case to see. The people who claimed that being made to make cakes for gay people was a violation of their rights didn't have much luck though.

Granny bashing (unprovoked muggings and violence towards the elderly because they are physically weaker and less able to fight back) is surely something different. I have seen lots of suggestions that MM was 'elderly' and 'frail'. That seems a bit insulting- she is nothing of the sort and that too obscures the reality of what happened here. Tara Wolf was totally in the wrong and was rightly convicted, but it's nothing like elderly people being targeted because they are elderly and it shouldn't be presented as such.

have seen lots of suggestions that MM was 'elderly' and 'frail'. That seems a bit insulting- she is nothing of the sort

She might be fit for her age - but she was still targeted because she was perceived as an 'easy' target - had she been the same age, sex and height of her attacker things may have played out differently at speakers corner.

I've just done some more checking, and as far as I know the ECHR, which provides guidance over the equality law, does talk about how far you can go with reference to biological sex.

Although this is directed towards schoolchildren, again as far as I know, it's the same law for adults.

"3.35 A previously female pupil has started to live as a boy and has adopted a male name. Does the school have to use this name and refer to the pupil as a boy? Not using the pupil’s chosen name merely because the pupil has changed gender would be direct gender reassignment discrimination. Not referring to this pupil as a boy would also result in direct gender reassignment discrimination."

fairplayforwomen.com/equality-act-2010_womens-rights/

Because it's guidance, not actually written into the law, I think a body/person would have to justify why they went against it.

The judge in the Maria Mac case insisted she use male pronouns. Presumably because of this part of the guidance.

I agree it massively disadvantages women because people's perception becomes skewed.

I don't think, for second, that men understand this. (Most men).

One thing I’d like to know:

Calling a transwomam a woman is an opinion
Calling them Male is a fact

Belief is based on faith and opinions. Science is based on observing reality.

So if I’m in court, and under oath, and compelled to use female pronouns on a person I KNOW to be Male, and say I believe they are female, am i committing purjury? Because my words would be at odds with observable reality. And I would be lying.

I have to look at case law in this area in detail this week for a case. I will come back once I have.