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.)

This has always been my thought - in a meeting I don't refer to another person present as "she" So you wouldn't be misgendering so no problem.

Susanbunch I don't accept your comparison between people refusing to use 'preferred' pronouns and people who refuse to recognise marriage if it is between two people of the same sex.

Our entire language is a linguistic construction - is your argument that it is impossible to tell a lie because words are all made up anyway? Words are connected to meanings and those meanings have to be understood by people sharing the language. When I say she I am talking about a woman, and a woman is a female person, that is a person who has a particular type of body and set of potential experiences in the world that are both different to the body and experiences of the other sex (males). Most people know exactly what sort of person is indicated by a pronoun. If I use a pronoun knowing that it refers to the opposite of what most people, including myself, expect, then at best I am being misleading. But as I am very aware of this discussion it is not merely misleading - it is dishonest.

If they pass a law saying that some cats are now dogs do I have to start bathing my cat and feeding her Pedigree Chum?

If the law is at odds with science and observable reality then it doesn't make a very good "this is why I'm right" argument.

RosenbergW no, but some languages do not have gender-specific pronouns and people seem to manage. Surely if you say 'I asked him to pass me the biscuits', the gender/sex of the person is not relevant to what you are saying? You are not lying by using she or they or the person's name. What if someone asked you to use a nickname? Would you refuse on the basis that it is not their legal name?

As I said, people can use names/gender neutral pronouns if they wish. The problem comes when there is a perceived 'right' to keep referring to someone you work and interact with as 'he' ('because it's the truth') when they have asked you not to. I am not sure whether anyone on here would be brazen enough to do so in real life.

Like most things it most likely depends on the situation and the individual and the company culture and...

If the law is at odds with science and observable reality then it doesn't make a very good "this is why I'm right" argument.

Yet the law is what it is and we are bound by it, unless it's repealed. But yes, all law is socially constructed and reflects particular views at a particular point in time. It's by no means an inherent truth. The problem is that if you refuse to obey it, you're likely to face sanctions, even if you point out that it's based on flawed scientific logic.

fascinating discussion. thanks for starting it and to all posters.

On a side note, I wonder how many lawyers with real expertise on this there are? (not just as an add-on to employment law).

I'm sure everyone here can navigate that process themselves, given that they're intelligent people. Had you assumed otherwise?

In reality if somebody were convinced they were Joan of Arc most people would call them Joan out of politeness, but the difference would be that nobody would really think the person was Joan of Arc.

I think the best compromise is just to avoid pronouns.

Susan - yes some languages use/don't use pronouns differently to the way we do in English. So? If I was speaking a different language I'd follow the conventions of that language. Your argument is that I shouldn't follow the conventions of the English language if it means someone will be upset? That isnt an argument, that's an appeal for special treatment by appealing to sympathy.

Sometimes people get pronouns wrong. When I was (much) thinner and younger I often got mis-pronouned. Sometimes I was a bit embarrassed, sometimes amused, other times I felt nothing because it just didnt matter. My children (all gender non conforming in different ways) have experienced mis-pronouning which they have just shrugged off for the most part. Accidents happen and people soon realise and correct themselves. I'm not asking that noone ever makes a mistake. This is not about mistakes. This is about lying or misleading through deliberate subversion of language.

I agree, merry. I think most rational people know that transition does not have an effect on chromosomes, but they do it out of respect and politeness. And as you say, gender neutral or name is always an option if you feel unable to do so.

Been thinking a lot about this, and cant help feeling that this issue, like many in the whole trans debate, is one where one side of the discussion has made all the running and hence has been successful in framing the issue from their perspective alone. So the focus is all on misgendering and how painful that is for trans people.

So now it is our responsibility to begin to explain the other side of the case - namely that being forced, either by law or expected social convention, to use words which we know are a lie is painful to us. We need to talk about how it's painful, difficult and wrong to expect for example, children, to lie. I have seen some very heartfelt descriptions on MN from parents of children with autism who cannot get their heads around why they should say someone who is clearly a man is a woman. We need to stand up for the importance of being able to say what is the literal, biological and in fact often legal truth. We need to make this side of the argument as strongly, and as emotionally, as TRAs are making the case for misgendering being painful.

There are two sides and we need to convey our side. So, at present, MNHQ are reacting in an environment where the 'misgendering is wrong' argument has been allowed to hold unchallenged sway. We have to balance this out with 'being forced to lie is wrong'. And then find a third way which compromises between both sides.

Hi Angry,

I mean within the subset of lawyer, how many have expertise. I suspect it's fewer than I'd first assumed.

Not a battle between whether lawyers have more expertise than other people - that's a different question.

Yeah, this whole "it's already decided so you better hop to it" thing seems designed as much to stop that process of "hey, wait a minute, what if I object" from happening. Convince people that it's too late so they won't even try.

I hear what you're saying Rosenberg, but if we are talking about the legal position here, it is something that is protected by law. The law doesn't mind what you call Caitlyn Jenner, but it does mind how you refer to your colleagues, students or customers. The point I made about other languages is that when you use pronouns, you are not making a claim to truth (and therefore not lying when using different ones), because the person's gender usually has little to do with what you are saying.

Someone could try to challenge it by bringing a test case, but I don't have high hopes for success.

Enlightening discussion everyone.

@Datun's link to the EHRC guidance on schools shows that this body interprets the law as requiring preferred pronouns. That interpretation must extend to other settings. For example, prison officers referring to Ian "Nicola" Huntley.

It's worth noting also the distinction between saying (i) a transwoman with GRC and therefore female birth certificate must be called "she", and (ii) any man who demands it must be called "she". I can see a respectable argument for (i), but not for (ii).

The extraordinarily elastic definition of "gender reassignment" in the 2010 Act has really opened up a can of worms ...

Didn't mean that in response to you, Thanksfor! Given how relatively new all this is the number of lawyers with experience is probably quite small.

What's being presented by some people as a done deal is actually more of a still evolving area. It may be useful for anyone going, we've just gone round in circles for the last 60 comments, so confused, to ask themselves who benefits from encouraging that confusion. Confused people tend to pick whichever option seems easiest.

The problem is that if you refuse to obey it, you're likely to face sanctions, even if you point out that it's based on flawed scientific logic.

You are technically correct of course, but Galileo was prosecuted for this in 1616 and 1636. I sort of hoped we’d moved on a tiny bit since then?

I cannot and will not say I believe something that I know to be demonstrably false. And why should I? This isn’t an opinion, it’s a fact. The earth orbits the sun, and humans cannot change sex. Regardless of what the inquisition says.

And yeah, how the current law is applied to someone with a GRC will in practice likely be quite different to how it's applied to Danielle Muscato. Unless you're in say NYC, in which case you're screwed.

In and NYC style they're going to fine you a lot of money scenario I'd say avoidance is the way to go. It's not often that you find yourself saying "hello, Julie, whose pronoun is she" in normal conversation.

I cannot and will not say I believe something that I know to be demonstrably false. And why should I? This isn’t an opinion, it’s a fact. The earth orbits the sun, and humans cannot change sex. Regardless of what the inquisition says.

Then that is something that needs to be pursued further if people feel strongly about it. The law changes all the time to reflect changes in social opinions. It's not impossible to conceive that it could change on this particular point as well. But it has to be done through proper channels of course.

I cannot and will not say I believe something that I know to be demonstrably false.

But would you be prepared to stick to the things that you know are true and just avoid pronouns? I don't think anybody can force you to use pronouns in speech?

For me the sticking point is explaining the issue to children. I could get as far as "so and so" would like to be called "x" and referred to as a boy/girl, but I would struggle not to editorialise and also explain that gender doesn't exist. Not a problem for a private individual, perhaps a problem for a teacher.

It's not only a refusal to lie, by government mandate, it's a refusal to validate someone in a status that you profoundly disagree that they have, should be entitled to, or even understand.

When men who have AGP and fetishise womanhood are demanding that you validate this position by saying she, it's anathema to any woman.

Knowing that the law is complicit and will back them up is horrendous. It's highly misogynistic.

Once again, the distinction between transsexuals and transvestites is proving key.

On a side note, I wonder how many lawyers with real expertise on this there are? (not just as an add-on to employment law).

Well it's impossible to say really. Most lawyers won't come across trans issues at all. Most of the ones who do will be in the context of employment. I worked briefly in employment law but most of my experience with trans issues is from dealing with service provision and another niche area which I can't really reveal on here. I have no idea about the other lawyers on here, although I think most people with legal training wouldn't struggle to understand most of the legislation. The real issue is that the legislation is relatively recent and there is a lack of case law outside the Employment Tribunal context, so there is plenty of scope for disagreement on the finer points until more cases are decided.

And yes Datun, the validation of AGP inherent in the demand for the use of female pronouns is a critical point to make. Nobody can demand I unwillingly do something to give someone else sexual satisfaction (we have a word for this) and that is what is being demanded if I am asked to refer to someone with AGP as she.

I am and always have been happy to use female pronouns for someone who has committed to transition - perhaps for me the GRC is key here and if someone is legally categorised as a woman I will use female pronouns. But I still would not believe they are a woman in the way I understand that word.