Is misgendering* someone in the workplace unlawful discrimination and do employees have the right to be addressed using the pronoun of their choice?
In Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137, a recent case in the Canadian British Columbia Human Rights Tribunal, the Tribunal found that Jessie Nelson, an employee at the Buono Osteria restaurant in British Columbia had been subjected to unlawful discrimination on the basis of their gender identity and expression, in violation of the Canadian Human Rights Code. The Claimant was a non-binary, genderfluid and transgender person who used they/them pronouns. In that case, the bar manager at the Claimant’s place of work repeatedly referred to them using “she/her” pronouns and called them by gendered nicknames such as “sweetheart”, “honey” or “pinky”. When the Claimant complained about this, they were dismissed shortly after.
The Tribunal in Nelson held that the deliberate, constant misgendering of the Claimant was a violation of their human rights and the employer was ordered to pay $30,000 in damages to the Claimant and “implement a pronoun policy and mandatory training for all staff and managers about diversity, equality and inclusion”.
But what would an employment tribunal’s approach be in the UK? Does our employment and equality law provide individuals in the UK with the same protection and rights as those afforded to the Claimant in Nelson?
The relevant legislation
The Equality Act 2010 protects individuals from being unlawfully discriminated against on the basis of “gender reassignment” and the Equality and Human Rights Commission Code provides that gender reassignment includes not just medical transition -where an individual undergoes medical treatment so that their body reflects the gender with which they identify as opposed to that which they were assigned at birth- but also other aspects of transition, including changes to an individual’s name, personal pronouns or outwards presentation (E.g. clothing, hair style).
Where an individual (“A”) engages in unwanted conduct relating to another individual’s (“B”) gender reassignment and that conduct has the purpose or effect of violating B’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for B, that conduct is likely to constitute unlawful harassment. B will also unlawfully harass A where B is subjected to less favourable treatment by A as a result of B’s rejection of or submission to A’s unlawful, discriminatory conduct.
An employer will only escape liability in these circumstances where it has taken reasonable steps to prevent such conduct from taking place (whether proactively, by having relevant workplace policies and training, or reactively, by seeking to correct the behaviour of the offending individual), and the discriminating employee or employees may also be liable personally.
Recent developments in case law
Until 2020 the above protections had not been expressed as applying beyond individuals transitioning either from male to female or from female to male. The case of Taylor v Jaguar Land Rover Limited confirmed that these protections also extend to non-binary and genderfluid individuals. In that case the Claimant (who had worked for the Respondent for over 20 years before she** started identifying as non-binary or genderfluid) faced various discriminatory comments from colleagues as well as issues accessing toilet facilities and support from her managers, and was referred to by her colleagues as “it”. When she raised complaints about this treatment, she received no substantive support from the Respondent.
The Tribunal found that the Claimant had been discriminated against on the basis of her non-binary or genderfluid gender identity and that (notwithstanding its existing Equal Opportunities and Dignity at Work policies) the Respondent had failed to follow the ACAS Code of Practice in respect of measures to support the Claimant in the workplace in her transition.
There has been considerable media coverage in particular in the last couple of years of the case of Maya Forstater v CGD Europe and Others. In that case, the Claimant was a consultant engaged by the Respondent whose contract was not renewed as a result of her having publicly and privately expressed her belief that “sex is biological, binary, immutable and important” and that trans women are men.
The Claimant was unsuccessful in her claim at first instance, but the Employment Appeal Tribunal overturned the tribunal’s decision, ultimately finding that the Claimant’s beliefs in relation to sex and gender were afforded protection under the Equality Act 2010.
However, the EAT’s judgment noted in particular that:
“This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of [the Equality Act] will be for a tribunal to determine in a given case.”
As such, while holding beliefs that are typically referred to (by those who hold them) as “gender critical” is not in itself discriminatory, the EAT clearly indicated in Forstater that wilfully misgendering another person may well (on the facts of any particular case) be deemed to be unlawful harassment.
What does this mean for employers and individuals in the workplace?
Referring to a colleague or an employee in the way they wish to be addressed or referred to is most often likely to be the courteous approach and therefore a sensible way to maintain good relationships and a positive workplace culture. Indeed, an increasing number of employers have begun to take the proactive step of allowing or encouraging employees to include their preferred pronouns in their email footers, both as a way to foster inclusivity in respect of transitioning staff and to normalise the idea that individual employees may outwardly present with a different gender than that with which they identify.
However, even with such proactive steps, employers must be live to the risk posed by individuals in their organisation choosing to misgender colleagues and others within the workplace, and individuals choosing to behave in this way will also put themselves at the risk of a claim against themselves personally. If a business puts in place clear policies on equal opportunities and supplements them with training and the promotion of a diverse and inclusive culture, then the risk will be reduced substantially.
*”Misgendering” someone is when an individual refuses to use another person’s preferred pronouns when speaking to or about them E.g. referring to a transgender woman as a man, or referring to a non-binary person who uses gender-neutral pronouns such as “they/them” as “she/her” or “he/him”.
**Subsequent to the issues that form the subject of this case, Ms. Taylor now identifies as female and uses she/her pronouns. These were therefore used by the Tribunal and are used in this article to refer to Ms. Taylor.
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