Isla Bumba.20

[newyearnoeu]

Another example of an 'HR consultant' who apparently doesn't have a clue about the actual law.

Boomer colleagues won’t use a coworker’s ‘they’ pronouns – what should I do?

Everyone has to use 'they' pronouns for NB colleagues and it is BREAKING THE LAW if you don't. She even says " Under the Equality Act 2010, if you deliberately or repeatedly misgender someone, especially after they’ve corrected you multiple times, then this could constitute harassment or discrimination, related to the protected characteristic of 'gender reassignment'

Except even I know that being NB has NO legal basis in law and definitely doesn't come under the EA definition of 'gender reassignment.' How could it, if the whole point of being NB is that you don't have 1 set gender to reassign!

I find it terrifying actual professionals are still preaching this completely inaccurate view. Bad enough if she'd just expressed her opinion that colleagues have to respect NB pronouns but to try and scare them into obedience by lying about the law is so deeply unprofessional.

She's not even just a HR professional - she owns her own HR consulting company! What else is she completely misrepresenting to her clients?

no because the protected characteristic isn't 'trans identifying' (and most NB people wouldn't consider themselves 'trans identifying anyway) it's 'gender reassignment,' which is very specifically defined " covering anyone proposing, undergoing, or having undergone a process to reassign their sex."

It’s worth remembering that the person complaining of the harassment doesn’t have to have or even be perceived to have the PC in question. And the harassment doesn’t have to be “because of” a PC. If choice of pronoun usage is related to GR (and also the PC of sex) which arguably it is, then pronoun usage as a form of harassment could be said to be “related to” the idea of gender reassignment, or for that matter, even sex.

Am I “sure”? No. But an tribunal judge who wants to punish someone for being an ass to a colleague might accept the argument.

I mean there are live court cases/tribunals discussing exactly this kind of thing, right now.

There is no settled answer either way - you can't say it's illegal/prohibited/forbidden to use pronouns other than those requested and you can't say that you can call someone whatever you want.

Context, history, etc, all are relevant. And yes, many people who say they are nonbinary consider they have the pc of gender reassignment. I don't think that would hold up in court, but tbh most HR depts are all about trying to stop things going to court in the first place.

In a workplace context, people have to rub along with others with very different views.

It irritates me equally that people "older than" always seem to be called 'boomer'. They are most likely gen X, as there are few 'boomers' still in the workplace. I remember my birth year flipping from gen x to boomer at some point an thinking 'huh, my boomer brother is 16 years my senior, and technically could have been my father if not for the incestuous connotations. Really, 60s born folks are no longer baby boomers, but seem to invariably lumped into that category, going so far as even the late 60s early 70s born to be included.

It’s worth remembering that the person complaining of the harassment doesn’t have to have or even be perceived to have the PC in question.

It's worth remembering it's all a load of bollocks, there are about 72 recognized 'preferred pronouns', all though not by anyone who's remotely connected to reality. If I end up working with someone who expects me to refer to them as Qui/Quem/Quis they've got fat chance of me conceding to their wishes, especially as they won't be around to hear how I refer to them.

Thanks for this OP! I wrote a long post about this last week and then lost the post and gave up.

I was aghast at the factual inaccuracies/errors any my take was:

• NB is not clearly included as a “gender reassignment” category. The idea that an employee could be compelled to use they/them didn’t seem clear cut. Just like if they’d requested zie/zay or other terms which could be considered a personal delusion. For example if your colleague is David Ike are you obliged to respect him as the son of God? No because although there is politeness, there are limits.
• GC is a protected belief so the older colleague is protected and cant be compelled to use pronouns. As others have said an acceptable work around would be to use a name but forcing the issue would be problematic for an employer either way.
• Age is a protected characteristic. Whether the EA or bullying, it seemed to me that the age of the colleague was viewed negatively and there could be an argument to say that it is harder for older employees to make this cognitive shift for a colleague who was originally known as one sex but then wants to be referred to in another way - while doing nothing to change their appearance. It’s not easy to do even if you’re the most ardent supporter - cf Jane Russell and Isla Bumba in the Peggie Tribunal.
• IMO using the term “boomer” as a pejorative term seems to me to be bullying (as well as totally inaccurate as it’s the kids of boomers who are seniors in the workplace these days). If carrot top is bullying then boomer definitely is a problem term.
• The advice to the colleague who had supposedly written in was encouraging them to get involved - that sounded dangerous. The advice failed to mention that this colleague could be at risk of perpetuating discrimination against the older staffer and expose the employer to litigation risk. Potentially damaging to future prospects at the company but also the could be named as a respondent - it’s a highly contested area and test cases are actively being sought. The colleague should be asked how strongly they feel about this issue snd what personal risk they’d like to take getting involved.

The whole thing was so out of date and poorly done I wondered it was actually published as rage-bait for GC clicks?!

The PC of GR definitely covers people who wish to be, and are presenting as, the opposite sex but it still doesn’t require others to use false pronouns.

but non binary isn't 'presenting as the opposite sex'
that's the point.

When the EA was written barely anyone had ever heard of being non-binary. Therefore the definition of the PC of gender reassignment was not written with that in mind. It's possible if taken to tribunal someone could argue that it is thematically similar so the PC should apply, but then that edges into the whole SC ruling - can you backdate and interpret what you think legislation should mean? Or do you have to go with what was intended at the time (and if out of date, campaign for it to be updated). SC ruling found the second.

Besides which the test of discrimination because of a PC is whether someone without the PC would be treated the same.

e.g. access to female toilets.
Trans positive argument would be that the comparator to test the scenario against is a 'cis' female - cis female would be allowed to use the toilet, they aren't solely because they are trans, therefore they are being discriminated against because of their GR.

GC argument would be that the direct comparator should be a man, because trans women are still biologically male. A 'cis' man would not be allowed to use the women's loos, therefore a trans woman not being allowed to use them is being treated exactly the same, and not being discriminated against.

I imagine the same would apply here.
NB person's argument would be that they are being treated differently compared to a cis woman who wants to be called by female pronouns and is called she/her by everyone = discrimination
GC argument would be NB person, however they feel/self-identify is still biologically male, and therefore is referred to as 'he/him', like any other biological male.

Again, hopefully any reasonable person would just agree a compromise. But if it did get to court, would it be considered a breach of the EA? Maybe a few years ago but now, I don't think so, as it would have to contradict a lot of recent rulings.

Currently there isn't any legal protection for being NB in law, and until/unless the EA is updated to include being NB as a PC, it's not appropriate for a HR consultant to insist that something that isn't even mentioned in the EA absolutely is a breach of it. Particularly given the role of HR is to protect the company, not recommend a course of action that could potentially embroil them in legal action up to the highest court in the land to query an untested point of legal interpretation!

I suppose someone could try to argue NB under protected belief.

My point was that the arguments around NB not being a PC are irrelevant as even for those for whom GR is a PC it doesn’t require others to use wrong-sex pronouns.

I would add to this that I think it’s unreasonable that it is the mere act of correctly sexing someone that is targeted here rather than the way it is done/overall environment. Even for those who want to play gender woo it is incredibly difficult to use preferred pronouns when most of your brain is telling you that this is actually a man/woman. Witness all of the misgendering by true believers in the various ETs. Most of us have other stuff to worry about/menopausal brains/actual work to do.

Surely there is the world of difference between someone who shouts and points ‘you’re a man, nyah nyah nyah nyah nyah’ which is pretty unacceptable and someone who is courteous and behaves in ways entirely appropriate for a workplace but misgenders because they are actually thinking about work/they don’t believe in wrong sex pronouns/they keep forgetting/they haven’t the foggiest idea what this person’s pronouns are.

I would hope that while an employer can ask that colleagues are reasonably courteous to each other, they can’t compel speech one way or the other and shouldn’t be disciplining a worker who is polite but doesn’t use preferred pronouns for whatever reason.