Misgendering - a more nuanced definition is needed?

[cheeseismydownfall]

I am really struggling with the concept of misgendering, following the blanket statement made by one of the interviewees on R4 this morning that "misgendering is wrong".

How can this be? If we accept that the Equalities Act allows for single sex provisions, and even to the extend of excluding those people who hold a GRC in certain circumstances, it follows that there may be occasions when 'misgendering' is required in order to correctly apply the law.

Take a few scenarios:

1. A transwoman going for a quiet coffee and being pointedly and repeatedly referred to using male pronouns by a member of staff. Transwoman politely requests the use of female pronouns instead. Member of staff laughs and continues to refer to the transwoman as male.

1. A transwoman using the female toilets in a workplace, despite the availability of unisex facilities and a multicultural diverse environment in which some women have previously stated that they are extremely uncomfortable with the idea of a male-bodied person entering the female-only space.

1. Requesting assistance with a fitting for a first bra for a young teenage girl, and discovering that this service is being provided by a transwoman.

No-one but a complete dick would think the first scenario is OK. Bullying and humiliating someone like this would be a despicable act, and (in my mind) this is what #bekind was supposed to be about - and would have been better coined as #don'tbeanarse

But what about scenarios 2 and 3, where the women and girls involved have their own feelings which are also valid? How can it be wrong for a woman to express her discomfort in these circumstances?

I guess I am frustrated because whenever the term 'misgendering' is used, I think people assume that the context is something akin to the first scenario, and that women are just being mean. I think there needs to be some clearer distinction made around deliberate, unnecessary 'misgendering' and a woman's right to query if her sex-based rights are being compromised. A single term is not adequate, surely?

Also at what age will the law apply from? My 3 year old misgenders 51% of the population as she seems to have got stuck with 'him' and doesn't use 'her' yet.

What about neurodiversity, will that be an exemption from prosecution, how will this neurodiversity be defined? What will the threshold for neurodiversity be set at?

Are they going to have a disability exemption for people with ASD like my son who can't lie about these things or will he still risk a criminal record?

I'm starting to think schools should go with the old-fashioned public school line of only calling pupils by their surname, Jenkins minor, Molesworth 2 style as a way to step away from the 'social transitioning behind parents' backs' controversy.

If my right not to believe that a male can be a woman is protected, why should my speech be compelled to declare that a male is a woman?

It is a good judgement, but still fuzzy - just like everything to do with 'gender reassignment'.

I don’t know what the answer is OP but I completely agree with you. I also agree with cyw2018.

I was in a queue for ages for a child’s attraction a while back and DC asked me in a stage whisper why the man with the beard was wearing a dress and lipstick. I just said anyone can wear those things and changed the subject but if this person had overheard and been upset, who’d have been in trouble?

I think it's because it's a concept that's been turned on it's head and used as a trojan horse.

Human beings for the most part don't 'misgender' we 'correctly sex' other human beings just as we have done for many thousands of years.

There have always been those occasions where a few people have been mistaken for the opposite sex when people aren't paying close attention and make a momentary judgement based on stereotypes - a woman with cropped hair, a man with long hair. Usually those get resolved quickly when closer attention is paid or the person moves/speaks.

Those are genuine misgendering incidents but they don't get counted because that's not what the 'crime' of misgendering has evolved to be (and also people have rarely cared about mistakes in the above scenario, they just get on with their day).

The current crime of misgendering that is being pushed is when people correctly recognise someone's sex is so it's actually the opposite of what it used to be.

You didn't get it wrong, you got it right and it's the getting it right aspect that has become punishable. You are committing a 'hate crime' by getting it right. It's like asking a class what the answer to 2+2 is and criminalising everyone who answers 4.

It's totalitarianism dressed up as progression and politeness. Even if you agree that maybe there are some scenarios where politeness is the better option, in a workplace for example, those scenarios are very limited in scope. Perhaps everyone in your 6 person office knows the score but what about visitors, customers, outside contractors?

It's then further complicated by people who want to be referred to by non binary or neo pronouns. At some point the whole thing collapses into a hot mess of grievance and everyone walks on eggshells fearing they will be accused of a hate crime for recognising the longest existing human categorisation in history, that of sexual dimorphism.

In instances 2 and 3 absolutely necessary to speak the truth in order to obtain the relevant sex-based rights. Instance 1? I would try to avoid pronouns altogether but I'm not sure why I should feel compelled to lie.

I had a big discussion with my DD about this yesterday. We came to the conclusion that pronouns had to be sex based rather than gender based.

There are two sexes which in the vast majority of cases are automatically identified by the viewer or listener. It is unreasonable to expect the viewer or listener to correctly identify a stranger's gender from one of the hundreds available.

While it may be kind and courteous to apply labels an individual has chosen for themselves, it isn't reasonable to mandate this given that being GC is a protected belief.

I think a fair analogy would be an atheist attending a church service. It is reasonable to expect them to be quiet and not shout about sky fairies. It is not reasonable to expect them to bow their heads and pretend to play.

It is perfectly reasonable to not believe in gender identity and while we should be kind to those who do, we are not required to pretend we believe.

So in your examples

1. Staff member is being a dick. They are being deliberately insulting and there are ways to deal with that situation that do not involve being insulting, and that do not involve the staff member pretending the customer is a woman.

1. Transwomen is being a dick.

1. Transwomen is being a dick and should probably have their hard drive checked.

The problem is that for gender extremists neutral politeness is not enough, if GCs don't pretend convincingly to believe then they are transphobic bigots.

Yes I agree. I misgendered someone's son in the park recently. My own son had assumed the child was a girl, and we both kept talking about waiting for the little girl to have a turn first, and saying, "she likes the slide, doesn't she? Are you going to follow her down?" He was wearing gender neutral clothes, and had beautiful long blonde hair and a very feminine face. But, turns out he was a boy. I felt embarrassed. But is that now a crime?

I think misgendering should be closely defined as deliberately referring to someone in the opposite gender with an understanding that this will cause avoidable embarrassment or distress, when you have previously been made aware the person has made a request to be identified as a different gender.

'Misgendering'. The very word implies that 'gendering' exists.

But I have never knowingly 'gendered' anyone, ever. I have sexed people. (And I didn't have to look at their genitals to do so, not once.) Have I every sexed someone incorrectly? Possibly. Have I ever been mis-sexed? Yes. Did I rage at the person who did so? No - I judged that as a short, short-haired, flat-chested jeans-wearing 17 year old, I did look quite like an adolescent boy.

I think a fair analogy would be an atheist attending a church service. It is reasonable to expect them to be quiet and not shout about sky fairies. It is not reasonable to expect them to bow their heads and pretend to play.

A very good analogy indeed, especially when you consider how many non-believing people actually do bow their heads and pretend, simply because they don't know what else to do/are embarrassed about looking different/think they may embarrass others if they don't do the same as everyone else. An exact parallel to all the people who know perfectly well that TWANW, that you cannot change sex, but go along with it anyway.

Do protected beliefs mean you can act in a way that follows those beliefs regardless of others? Isn’t it illegal for, say, a Christian baker who believes homosexuality to be a sin to refuse to bake a wedding cake for a gay couple? Or did I make that up?

There clearly needs to be more definition between things protected by sex - intimate procedures for example. Are those currently protected by sex or gender?
Is it currently illegal for men to use women’s toilets? I don’t know.

For the PP that asked about her 3 year old misgendering - of course that’s not a crime. The age of criminal responsibility in England and Wales is 10. Where a disability like ASD impacts things that would surely have to be on a case by case (not all people diagnosed with ASD would have that issue).

I think the central issue here is compelled speech and not whether pronouns should be gender or sex based.

If someone's name was Ben and I insisted on calling them Lucy, they would correct me. I could continue calling them Lucy but I'd look like a Dick and the result would be disciplinary in the work place, or social ostracism in the social world.

But no one could sue me for calling them the wrong name.
It can't be illegal.
It's just in my interest not to be a dick in the work place where that's not allowed, or in social spheres where I want to friends.

If I don't work with or want to be friends with Ben however I can go on calling him Lucy all I like without the law getting involved.

So what I'm is: we need to be free to make our own decisions on what we say based on our own views, the context, and the outcome we want.

Hell if someone's newly-adopted name is Yves and someone persists in saying Eve, sarcastically. Any subsequent tribunal hearing would be interesting.

“ But no one could sue me for calling them the wrong name.
It can't be illegal.”

Couldn’t it? If it was causing them distress, wouldn’t it be harassment?

I'm very behind the curve here - where is the proposal to make misgendering a criminal offence?

What about the letters addressed to "Mrs Husbandfirstname Husbandsurname?"
Really annoying, that.
Is it illegal?

@NanaNorasNaughtyKnickers

I'm very behind the curve here - where is the proposal to make misgendering a criminal offence?

See the Scottish Hate Crime bill.

This is why I think it is really important that we have a distinction between 'misgendering' as a deliberate action with the primary purpose of causing offence and distress vs. accidental 'misgendering', or a legitimate querying of someone's sex in a context where biological sex is relevant.

(Although I still do not believe that the former should be considered an actual criminal offence).

On the issue of 'politeness', this is where I am willing to compromise. I am GC and I would honestly personally prefer not refer to anyone using pronouns that are at odds with their biological sex. But on balance I would prefer to be polite over being 'right', and would not attempt to exercise (what may now be my legal right) to practice my own beliefs to the extent of upsetting someone else. But that should remain my choice.

@JellySlice

If my right not to believe that a male can be a woman is protected, why should my speech be compelled to declare that a male is a woman?

It is a good judgement, but still fuzzy - just like everything to do with 'gender reassignment'.

My thoughts exactly

I don't believe misgendering is a thing, I believe pronouns relate to sex. Why should I potentially have to - under the law - call a male 'she/her'? It goes directly against my GC beliefs.

I will use whatever name a person chooses for themselves and at work would try to avoid 3rd person pronouns altogether, but I surely cannot be compelled to participate in the lie that a male can be a 'she'?

This definitely needs clarification.

@Cyw2018

Also at what age will the law apply from? My 3 year old misgenders 51% of the population as she seems to have got stuck with 'him' and doesn't use 'her' yet.

What about neurodiversity, will that be an exemption from prosecution, how will this neurodiversity be defined? What will the threshold for neurodiversity be set at?

Regarding neurodiversity: autistic people (like me) are subject to the same moderating rules on MN as NTs, although we struggle with the unwritten rules we are expected to obey.

I don't have any realistic hope of seeing any understanding of neurodiversity in the courts, either.

@DelilahDingleberry

Do protected beliefs mean you can act in a way that follows those beliefs regardless of others? Isn’t it illegal for, say, a Christian baker who believes homosexuality to be a sin to refuse to bake a wedding cake for a gay couple? Or did I make that up?

There clearly needs to be more definition between things protected by sex - intimate procedures for example. Are those currently protected by sex or gender?
Is it currently illegal for men to use women’s toilets? I don’t know.

For the PP that asked about her 3 year old misgendering - of course that’s not a crime. The age of criminal responsibility in England and Wales is 10. Where a disability like ASD impacts things that would surely have to be on a case by case (not all people diagnosed with ASD would have that issue).

I don't think you made it up but I know that your post presented a mythical case. I don't know if this was deliberate or not but the case you present is not factual.

Bakers cannot refuse to bake cakes on the basis of a protected characteristic, e g sexual orientation, but the courts have ruled that they cannot be compelled to decorate a cake with decorations that go against their protected characteristic, e g religious belief.

@FlyPassed

I don't believe misgendering is a thing, I believe pronouns relate to sex. Why should I potentially have to - under the law - call a male 'she/her'? It goes directly against my GC beliefs.

I will use whatever name a person chooses for themselves and at work would try to avoid 3rd person pronouns altogether, but I surely cannot be compelled to participate in the lie that a male can be a 'she'?

This definitely needs clarification.

Entirely agree.

My niece is a transman. I freely use her chosen name but use female pronouns to describe as she's female. I do however try not to do so in her earshot because I understand it distresses her.

I agree there is a difference between deliberate 'misgendering' for offence and simply being factual. That's not even taking into account neurodiversity or other issues that affect communication. What about people who have English as a second or third language? My polyglot neighbour routinely uses he for she and vice versa.

I don't think this is a matter for the courts. If someone is being an arse (first scenario) then there is recourse under the Equality Act.