Pronouns

[Pratchet]

How far will I get at work if I refuse use incorrect pronouns because it is discrimination to force me to support an ideology which is harmful to me? Serious question. Anybody who can help, that would be great.

Also, does anyone at all have an opinion on whether my stance would be strengthened by me saying that forcing me to use incorrect pronouns is disrespectful
A. To me as a woman or
B. To my identity as a woman

Looking for all views. (You're probably all gardening or at the beach while I'm at work refreshing my phone!)

Nellly you said:
What about 'genuine' trans people who have a grc and are just trying to quietly get on with their lives. Are you going to insist on embarrassing them repeatedly at work confused

I think this is my question. I haven’t had an HR department at work who has mentioned the GRC. There are just women’s toilets with male bodied people in them, that’s not going to be OK for all women at work. If it’s the law that’s a different thing. But I feel we might as well have legal self ID since the climate is not being able to ask about a GRC.

lol amazing! I really was being a prat

Chatty, just awful to have men in the women's toilet. It's so aggressive.

I would concur with Upstart's advice above:
That would affect everyone who is in the same position as you in the future, so the rule is you don't create a test case until you have a watertight case. My advice would be to pick your battles and look elsewhere. It's not uncommon for an employer to want to get rid of a loose cannon and use a different reason to the real problem. Don't be the loose cannon.

As enraging as it is, to have to 'validate' someone's 'identity', particularly when it goes against your own political beliefs - it is more about picking your battles. Being strategic, and having a longer term plan in mind. Additionally, you don't want short term situations (or cases) to backfire in the longer term, if that makes sense.

That would affect everyone who is in the same position as you in the future, so the rule is you don't create a test case until you have a watertight case.

I agree with this, although we might have a test case soon enough anyway if that John Sutcliffe case goes ahead. He was that teacher who misgendered a pupil and was fired and is I believe now suing on the basis that the trans ideology conflicts with his religious and ideological beliefs. I haven't seen any further news about his case since November though.

Thank you for all the terrific advice and thoughts. Sorry I haven't been able to revisit since this morning. Ally, special thanks for your patience and incredibly helpful insights.

I have appreciated reading Ally's responses in the thread.

It took me a little while to find the sex-based exemption Ally quoted above, but I did find it in Schedule 3, Part 7.

Gender reassignment
28(1)A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.
(2)The matters are—
(a)the provision of separate services for persons of each sex;
(b)the provision of separate services differently for persons of each sex;
(c)the provision of a service only to persons of one sex.

What puts in more in context is the heading directly above, "Gender Reassignment". One wonders why Women's Aid (apart from the 'funding blackmail') did not fight on the grounds of Schedule 3, Part 7 (28) (1) & (2)(b)(c) - as well as Schedule 3, Part 7 (30) (a) & (b)?

Services generally provided only for persons who share a protected characteristic
30 If a service is generally provided only for persons who share a protected characteristic, a person (A) who normally provides the service for persons who share that characteristic does not contravene section 29(1) or (2)—
(a)by insisting on providing the service in the way A normally provides it, or
(b)if A reasonably thinks it is impracticable to provide the service to persons who do not share that characteristic, by refusing to provide the service.

Canadian group Vancouver Rape Relief (VRR) eventually won against Nixon on the grounds of (paraphrasing) born and raised girls within the culture. The win was in the context of their Human Rights Code:
"December 7, 2005
The B.C. Court of Appeal held unanimously that Vancouver Rape Relief has the right to prefer to train women who have never been treated as anything but female.
The Chief Justice said: "The respondent Society was entitled to give preference to women who are not post-operative transexuals, because there is a rational connection between the preference and the respondent's work or purpose."

I would add as a footnote to that, that VRR have always and still do, take on trans as clients, but they drew a line about trans counseling females.

Sorry, I have drifted a little off topic, and maybe it should have been started as a new thread. Would you like me to move it Prachet?

Ally: [...] was fired and is I believe now suing on the basis that the trans ideology conflicts with his religious and ideological beliefs.

Interesting. Although I noted when I did read the EA many years ago, there is more protection for religion than for born females. And of course, this is a male bringing action, so he stands a far better chance.

I don’t think Joshua Sutcliffe will win his case. I believe he is being supported by that god-awful Christian Legal Centre who represented the parents in the Alfie Evans case. Their barrister of choice in these cases is a loose canon with an extremely shaky grasp of the law. If they fund it but instruct decent counsel maybe there is a chance, but otherwise, like their other causes, it’s dead in the water.

Plus obviously feminists aren’t arguing on the basis of religious beliefs. The more relevant case is the Jennifer James AWS case. I think that is actually a strong case but from the threads on here, who knows what will happen. Privileged communications have already been leaked on Facebook apparently.

Warning: Long technical legal post ahead

I agree Sutcliffe is unlikely to win. I wasn't impressed with the Christian Legal Centre in the Alfie Evans case either although to be fair I think that one was pretty impossible to win (the mother had Jason Coppel, who is normally excellent, at the final hearing but he couldn't make any convincing arguments either), but I think anyone would struggle here with the law the way it is and I think the same problems would be faced whether the deliberate misgendering occurs because of religious belief or feminist belief.

I've dug up the Ladele case law out of interest - that's the one about the registrar who refused to do civil partnerships for gay couples that I referred to above. I think it has a lot of similarities in terms of dealing with the conflict, which I've set out below. It pre-dates the Equality Act but that doesn't matter much because the Equality Act mainly consolidated the old law.
Employment Appeal Tribunal judgment www.bailii.org/uk/cases/UKEAT/2008/0453_08_1912.html
Court of Appeal www.bailii.org/ew/cases/EWCA/Civ/2009/1357.html
(NB the Supreme Court refused permission to hear the case)
European Court of Human Rights judgment www.bailii.org/eu/cases/ECHR/2011/737.html

I'll refer to the Employment Appeal Tribunal judgment because I think it sets things out clearest and the others basically just agreed with that judgment.

• The employer wasn't directly discriminating against Ladele's religion because they weren't singling her out and treating her differently because of her religion. This is important because direct discrimination can not normally be justified so it's easier to win these types of cases. Same logic applies to misgendering - everyone is excepted to use the new pronouns (or at least avoid pronouns), it is not that feminists and Christians are being asked to do something different.

• The employer wasn't harassing Ladele. The EAT held that the employer was only concerned with the fact that she was refusing to carry out the gay civil partnerships, not with her reasons for refusing. This is at paras 91-94 if anyone is interested. Therefore, it's not unwanted conduct relating to a protected characteristic. Again, I think the same logic applies to misgendering and would make it unwinnable unless after the refusal to use the new pronouns the employer then starts making disparaging comments about Christian or feminist ideology etc. Trying to force an employee to use new pronouns could not itself count as harassment IMO.

• Indirect discrimination. This means having a policy, criterion or practice which impacts one group worse than others. This kind of discrimination can be justified. The EAT held that Ladele was impacted by the policy that all registrars should carry out civil partnerships, but their policy was justified because it was fair for the employer to ask its employees to carry out services in a way which does not discriminate against gay people (see para 111 of the EAT judgment). Again, the same logic applies to misgendering - even if Christians and feminists don't want either use the new pronouns or avoid pronouns, the employer's wish for its employees to not make the trans person uncomfortable will trump this.

So basically I'm even more convinced after reviewing this that there's pretty much no hope of winning a case where there has been deliberate misgendering. If it's accidental and especially if the 'misgenderer' has a disability then that's a bit more arguable, but I think deliberate is unwinnable.

The Labour AWS case is interesting and I think has a good chance of succeeding but I don't think it's related to this issue. That involves a specific determination of the meaning of s104(6)-(7) of the Equality Act which basically says you can't have shortlists which are limited to people with a protected characteristic (eg only disabled people, only people of an ethnic minority, only trans people) unless the protected characteristic is sex. So the law says all women's shortlists are OK, but the argument is whether self-identified transwomen without a GRC count as women for this purpose. IMO they don't and the law doesn't permit a women and transwomen only shortlist. So fingers crossed JJ will win.

Really interesting, thanks Ally!

Totally fascinating thread! I sometimes wish I had read Law at uni instead.

Two thoughts: I wonder why you can’t have protected shortlists for other things? Like disability etc? Is it do with women being half the population but significantly less than half the people in politics?

And secondly, the section earlier about the Essex school and the BBC being given bad advice from a pro-trans group - I think the Woodcraft Folk have been on the receiving end of this too.

www.woodcraft.org.uk/sites/default/files/Transgender%20Inclusion%20Statement%20and%20leader%20guidance%20-%20draft%20March%202018.docx

Very early on, it says ‘Everyone has a gender identity’ and later says to be led by the child regarding where they would prefer to use toilets/showers, and who they would like to share a sleeping space with.

It is a shame because the WF I think are probably GC, and the document reads like a mix of genuine compassion for transkids, and lots of jargon which I presume comes from an advisory body.

Heartbreaking section on breast-binding too, just awful.

Thanks so much for this thread and Ally your posts are so informative.

I wonder why you can’t have protected shortlists for other things? Like disability etc? Is it do with women being half the population but significantly less than half the people in politics?

I have assumed that was the reason - women are technically the slight majority of the population so it shouldn't be too hard to find enough good candidates even if men are excluded. I personally think an all disabled shortlist might not be a bad idea as I think it's about 1 in 5 people who are disabled so it still ought to be possible to get a good range of candidates but my understanding is that parties can reserve some places on shortlists for disabled people but can't do an entirely disabled shortlist. I did just google and came across an article on a disability news website saying that the Lib Dems had done an all disabled shortlist, although I wonder whether they did something clever to get around the law like have all the places apart from one reserved for disabled people, and then have a popular local disabled person put themselves forward for the non-reserved spot.

It sounds like WF have jumped on the well-meaning but potentially harmful bandwagon. I can see why they do it, but it's disappointing.

Thanks for replying Ally that’s all interesting. It is a shame re: WF, and it reads so compassionately I almost feel like saying ‘you don’t need anything else!’

Sometimes I wonder how it would go down with trans teens if they were very gently and kindly informed that though they could choose a different name, wear whatever clothes they wanted, etc, but that there were just some situations where penises and vaginas were kept apart (safety, privacy, etc) and a third space was always going to be available, if that would not be enough? I think most trans people would understand that delicacy. Then the TRAs are so narcissistic about, and then Lily Madigan and the American Lila Perry are encouraged to be as difficult as possible, and a real wedge is driven between people who actually would agree on a lot of things.

It is 20 years since I was a teenager but I have taught a lot of them, and I honestly think most would be really reasonable about this.

(Sorry I didn’t proofread that! Grammatical errors, agh, hope it makes sense).