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?

@MishyJDI

2) 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.

Why would it bother you? Last time I looked the bathrooms have separate stalls. So not sure why people should be upset? Seems exclusion for no good purpose. Some people don't like other races in their bathrooms (bad!) or people who smell funny (also bad) - do they have the right to insist they use a different facility?

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.

What is your fear here? The trans person will somehow get off on it? Get real. Especially on HRT. And what if the bra was being fitted by a lesbian cis woman? Would that make you more or less comfortable?

Really strange examples you are using.

In short, I would not have an issue with any of these examples if the people doing their business are behaving appropriately.

And many womens loos - lets face it, we have all seen weird stuff!

OK, I'll bite.

In both these scenarios, I wouldn't like it for exactly the same reason I would not like it if you substituted "trans woman" for "man".

If you think that the entire concept of sex-segregated services, spaces and sports are outdated and unnecessary, then great - I can understand and respect that you hold that view. I would vehemently disagree, but we could engage in a discussion about it. But that has nothing to do with the conflation of sex and gender identity, which is what is being discussed here.

Turn it on its head. If we accept that it is reasonable for a teenage girl to feel uncomfortable about being fitted for a bra by a man, why should she feel comfortable being fitted for a bra by a transwoman? What is the difference?

What is your fear here? The trans person will somehow get off on it? Get real. Especially on HRT. And what if the bra was being fitted by a lesbian cis woman? Would that make you more or less comfortable?

And why are on earth are you bringing sexuality into it? Why is that relevant? I'm fairly confident that a young male nurse would not in any way be attracted to my sagging, middle-aged, post-pregnancy body, but that doesn't mean that I would prefer a female nurse to conduct a smear test. Her sexuality would be irrelevant and none of my business.

wouldn't prefer

@NanaNorasNaughtyKnickers

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

Scotland.

Lesbian woman. Cis is an artificial construct. If anyone refers to me as cis I will completely ignore them.

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?
It went to appeal, and 5 high court judges agreed that the bakers were not discriminatory because they would have made a different cake for the gay couple, just not one that said "support gay marriage" on it, because they didn't support it. Their personal beliefs were protected.

I was also going to say that in this country misgendering is not a crime but it is in New York and California. Can be fined $250,000.

I'd identity as trans on purpose to get my BIL to mis-gender me if I knew he'd be stung that much.

I suppose you could also wonder about why biological males don't use male spaces, irrespective of how they present themselves or identify as. There are separate cubicles anyway and facilities are designed for their bodies.

Is there some good reason to have some males in women's spaces and others not. Over and above the desires of the male himself who wants to intrude on women's spaces. Because it seems that is the criterium. An admittance facility has been created to satisfy the wishes of the males who wants to insert themselves in women's spaces. And that is all that is taken into account. Not even the consent of the women.

And is "misgendering" always wrong? Are we going to insist, as the Bench Book currently does, that a woman must refer to her rapist in court as "she" if said rapist identifies as female?

@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'.

Maya's judgement was interesting on this - the legal requirement to not misgender appears to be on public bodies, not individuals. Individuals must not harrass (of course) and misgendering can be a form of harrassment - but not in every case. i.e assets.publishing.service.gov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya_Forstater_v_CGD_Europe_and_others_UKEAT0105_20_JOJ.pdf

"103. The second error was in imposing a requirement on the Claimant to refer to a trans woman as a woman to avoid harassment. In the absence of any reference to specific circumstances in which harassment might arise, this is, in effect, a blanket restriction on the Claimant’s right to freedom of expression insofar as they relate to her beliefs. However, that right applies to the expression of views that might “offend, shock or disturb”. The extent to which the State can impose restrictions on the exercise of that right is determined by the factors set out in Article 10(2), i.e. restrictions that are “prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others...” It seems that the Tribunal’s justification for this blanket restriction was that the Claimant’s belief “necessarily harms the rights of others”. As discussed above, that is not correct: whilst the Claimant’s belief, and her expression of them by refusing to refer to a trans person by their preferred pronoun, or by refusing to accept that a person is of the acquired gender stated on a GRC, could amount to unlawful harassment in some circumstances, it would not always have that effect: see para 99 above. In our judgment, it is not open to the Tribunal to impose in effect a blanket restriction on a person not to express those views irrespective of those circumstances.

104. That does not mean that in the absence of such a restriction the Claimant could go about indiscriminately “misgendering” trans persons with impunity. She cannot. The Claimant is subject to same prohibitions on discrimination, victimisation and harassment under the EqA as the rest of society. Should it be found that her misgendering on a particular occasion, because of its gratuitous nature or otherwise, amounted to harassment of a trans person (or of anyone else for that matter), then she could be liable for such conduct under the EqA. The fact that the act of misgendering was a manifestation of a belief falling with s.10, EqA would not operate automatically to shield her from such liability. The Tribunal correctly acknowledged, at para 87 of the Judgment, that calling a trans woman a man “may” be unlawful harassment. However, it erred in concluding that that possibility deprived her of the right to do so in any situation."

This is in line with the Miller vs police judgment. So it seems clear that talking about a transwoman in a forum, eg mumsnet - and referring, for example, to a criminal past and the male name used when the crime was committed, would not be harrassment. It might be offensive to people, but so is an atheist mocking a practicing christian who happens to be in the news.

Harassment would be taking that all over to twitter and posting tweets attacking the person.

If I understand it correctly? Legal people???

other races in their bathrooms (bad!)

Careful. You will be accused of implying women of other races are not women.

or people who smell funny (also bad) - do they have the right to insist they use a different facility?

Or implying a woman who has a smell problem is not a woman. (Of course they can use the female toilets because they’re female!)

3. 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.

There are exemptions for personal services, should an organisation wish to use them. So women can of course wish to be fitted by a female person.

I think the issue is what counts as ‘proportionate’ and ‘legitimate’. I don’t think stopping transitioned trans women from using the women’s toilets would be seen as either proportionate or legitimate by most women. Or most of society. Other things... not so sure. Eg sport/ fairness.

When does misgendering become a thing though?
After someone has told you how they identify?

Because now we are told that males who make no changes to their masculine appearance or clothes choice can also call themselves women.

There are males who wear make up or heels who would use 'he'

What about non binary?

It is compelled speech.

If I had a 13 yo DD who needed a bra fitting and an adult male came in, I would refuse, because even if completely benign, the person whose feeling matter in that scenario are the young girl's who is not there to provide an adult with validation of an identity.

1 if the transwoman has a massive beard and is wearing a suit, then the cafe worker probably thinks they're taking the piss when they ask them to use female pronouns.

I don’t think stopping transitioned trans women from using the women’s toilets would be seen as either proportionate or legitimate by most women.

It may well be the case that the majority of woman would not object to a surgically transitioned transwoman using female toilets. (although it is really important not to make assumptions on behalf of all women.)

But - you haven't specified what type of transition you mean. Do you mean surgically transitioned? Taking HRT? Socially transitioned? Likes wearing dresses on a Wednesday?

Trans rights groups have made it pretty clear that policing the degree to which a trans person has transitioned is unacceptable. So where does that leave women?

@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?

Half of my family do this routinely as their mother tongue doesn’t do gender pronouns. I’m always getting called he, DS and DH are she...

We survive.

But - you haven't specified what type of transition you mean. Do you mean surgically transitioned? Taking HRT? Socially transitioned?

I mean some sort of medical or nhs supervised transition. Even those on the path to surgery have to live ‘as women’ to get there. I doubt that includes using the men’s.

Also to get a change of passport sex, (which many do) a trans man or woman has to have a letter from a doctor stating their change of gender is permanent. Again that doesn’t fit with using the wrong toilets. (Or ‘wrong’ toilets).

But no surgery or drugs are needed to change the sex on a passport, or to obtain a GRC. You cant discriminate between different types of transition, they are all legitimate.

Thank you for the clarification re the cake baking case. I wonder what the outcome would have been if it was specifically a wedding cake without the message “support gay marriage” on it. The reason I use that example is because of the similarities between protected beliefs and the right of a group of people to not be discriminated against. At some level there is an impasse and how do we decide what is right and fair.

don’t think stopping transitioned trans women from using the women’s toilets would be seen as either proportionate or legitimate by most women.

Unless they have had full gender reassignment surgery, you're wrong.

Polling shows that when the issue of male bodied people is clarified, women don't expect to have to share female single sex spaces with MTF trans people who have not had "bottom" surgery.

Misgendering is surely correct sexing and there are times when that is relevant and times when it isn't. I would suggest that the GP asking a trans woman about their prostate is not misgendering. Deliberately winding someone up calling attention to their sex when it's irrelevant, would be.

@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.

I agree with this.

I mean some sort of medical or nhs supervised transition. Even those on the path to surgery have to live ‘as women’ to get there.

That doesn't sound unreasonable, does it? And this is exactly the kind of person that trans rights campaigners want you to think about when discussing the issue of trans women in female spaces.

But it simply doesn't stand up. Without any way of accurately identifying which men have 'transitioned enough' to access female spaces, women are left to self-police them. Which has been the status quo for years, and was, I suppose, a workable compromise when women were empowered to call out behaviour that made them uncomfortable.

But once you silence women, and create a culture of fear, then what actually happens is women are forced to rescind this tolerance and draw up hard boundaries.

That doesn't sound unreasonable, does it? And this is exactly the kind of person that trans rights campaigners want you to think about when discussing the issue of trans women in female spaces.

There’s no reason why the government or legislation guidance couldn’t clarify that that is the intention. Or make it law.

I was also going to say that in this country misgendering is not a crime but it is in New York and California. Can be fined $250,000.

I'd identity as trans on purpose to get my BIL to mis-gender me if I knew he'd be stung that much.

I'm a bit mystified by how this binary keeps popping up between 'misgendering' by mistake and 'misgendering' in order to harass someone... what about 'misgendering' because you think gender is BS and you don't want to compromise your own sense of integrity by pretending?

A couple years back in Scottish Parliament, when they were discussing what information to ask for on the census, a trans rights advocate and a transwoman were there to represent the gender>sex viewpoint. Joan McAlpine asked them what it actually means to "live as the opposite sex." The answer she managed to get after repeating the question was some assurances that it had nothing whatsoever to do with stereotypes, it involved taking measures and sending signals to be perceived as the transitioned-to sex. The only specific thing the responder came up with was "asking" for pronouns. No problem with "asking," but what's really happening is coercing gender critical people to use preferred pronouns, thereby coercing us to participate in something we reject, enabling them to say they are "living as" the opposite sex.