Grammar and grievance

A tweet from Legal Feminist disagreeing with Acas advice on pronouns provoked a storm…

[image: taken from the illustrations to the Screwtape Letters]

In civilised life domestic hatred usually expresses itself by saying things which would appear quite harmless on paper (the words are not offensive) but in such a voice, or at such a moment, that they are not far short of a blow in the face…  You know the kind of thing: “I simply ask her what time dinner will be and she flies into a temper.” Once this habit is well established you have the delightful situation of a human saying things with the express purpose of offending and yet having a grievance when offence is taken.

CS Lewis, The Screwtape Letters (in which an experienced Devil coaches his nephew in the art and science of temptation)

The other day, Acas tweeted out the suggestion that putting pronouns in email signatures could help create a more open and inclusive workplace. Legal Feminist disagreed: 

There followed a storm of engagement, unprecedented for the Legal Feminst account: over 600k impressions, over 500 quote tweets and nearly as many retweets. I think the quote tweets in particular are revealing, and they are the main subject of this blog.

But before I get to that, I want to explain the context a bit; this will be old hat for many of my readers. 

The gender war: a quick primer

There are two sides in this war. They call each other various names, but we can call them sex deniers and gender criticals.

Sex denialism claims that sex doesn’t matter. Whether you’re a man or a woman depends not on your body, but on your inner sense of identity. A male person who says that he is a woman should be treated, referred to – and even thought of – as a woman for all purposes; and vice versa. Various things follow. If a man wants to join a support group for female survivors of male sexual violence, then provided only he says he’s a woman, he must be welcomed in. If a man with fully intact male genitalia wants to undress in the women’s changing area at the swimming pool, anyone who objects is a pearl-clutching prude and a bigot. If a mediocre male athlete wants to compete in women’s events and start breaking records and winning medals, the women should move over. If a male doctor wants to identify as a woman, his true sex is none of his patients’ business – even where intimate examinations are concerned. If a rapist decides he’s a woman and wants to be moved to a women’s prison, that’s his right too.  

Gender criticals think biological sex does sometimes matter: for healthcare, for safeguarding, for everyday privacy and dignity, for fairness in sport, and so on. They think sex is determined by whether you have a male or a female body, and that it’s no more possible literally to change sex than to change species. 

The attentive reader will have noticed that the “gender critical” viewpoint is made up of commonsense propositions that until about ten minutes ago no sensible person – whether on the political left or right – would have dreamed of contesting. The sex denialist beliefs are novel, and surprising.


So where do pronouns come in? 

This takes us to the manner in which sex denialism has been promoted. You can’t defend irrational beliefs with reason. By and large sex deniers don’t try: instead, their strategy has been to attempt to leapfrog over the usual campaigning, lobbying, arguing, persuading phases of bringing about profound cultural and legal  change, and to pretend instead that the desired outcome is already accepted by all right-thinking people – and to silence dissent by visiting dire consequences on anyone who questions that claim. That, I believe, is the whole reason for the vitriol and toxicity that surrounds this subject. Anyone who points out the absurdity of propositions like “some women have penises” must be howled down as a bigot, shamed, no-platformed, hounded from her job, kicked off her course, etc. That way, any doubter who lacks an appetite for martyrdom will be persuaded to steer clear of the whole debate – and insist if pressed that this subject is all too complicated and toxic, and they simply haven’t found the time or head-space to form a view. 

The more insidious part of the strategy is the first part: the pretence that the contentious  propositions that form sex denialism are already accepted without question by all educated, right-thinking people. Sex deniers make determined efforts to weave their claims seamlessly into our language and the fabric of our workplace culture, with the aim of converting contentious claims into the kind of tacit knowledge that doesn’t even need to be stated or formulated. 

Acas’s advice 

So what does Acas mean when it says announcing your pronouns can help create a more “open and inclusive” workplace? Inclusive for whom, and how? Your colleagues and work contacts will mostly know whether you’re male or female, if they need to. If you have an androgynous name and you particularly want to announce your sex, adding a title after your name will clear up any ambiguity with much less accompanying baggage than pronouns. But why do we even need to do this? Those who reply to my emails don’t need to know whether I am female or male. The truth behind pronouns is that their “baggage” is the point. The mechanism by which pronouns are supposed to make the workplace more open and inclusive is that they demonstrate your support of sex denialism, but without requiring you to say anything explicit. They bolster and entrench the idea that gender identity is more important than sex, while maintaining the appearance of a trivial, harmless courtesy. 

That’s why I think our tweet was right. The claims of sex denialism are far from universal: on the contrary, they are bitterly contentious. By putting pronouns in your signature you raise a flag that aligns you publicly with one side – and against the other – of the gender war. If you’re a Catholic pupil at a school in Glasgow where “No Pope!” is the standard greeting (I am not making this up – I have it on reliable authority that it’s an example drawn straight from life), you’re put to an invidious choice: either play along – or out yourself as a Catholic or Catholic-sympathiser. No doubt the greeting makes the environment feel welcoming and inclusive for the children of Rangers supporters; less so for young Celtic fans. 

Given the bitterness of the dispute – and especially given the many occasions on which gender critical individuals have had their jobs,  their livelihoods or even their physical safety threatened – being put to the parallel choice by pronoun rituals is not going to make the workplace feel open and inclusive for gender-critical employees.

An accidental behavioural experiment 

Are you feeling sceptical? Thinking maybe I’m overreacting, over-interpreting a harmless bit of politeness? I sympathise. When I first came to these debates, that’s what I thought, too. Why’s everyone getting so het up about language? Can’t we just be polite – can’t we use the words preferred by people who care passionately about words, and focus on what matters? 

If that’s where you are – re-read the short  extract from The Screwtape Letters at the top of this blog, and consider the manner in which the original tweet has operated as an accidental behavioural experiment. 

On the face of it, it’s quite a dryly techie tweet from a legal account, disagreeing with a bit of HR advice from Acas. But it’s had an extraordinary level of engagement: at the time of writing, nearly 700k impressions, hundreds of retweets and quote tweets, and nearly 3,000 likes.  

So what’s going on? Why has it attracted so much attention? 

I think the clue is in the quote tweets. They’re almost all hostile, and Twitter is a rage engine. Most fall into one of two categories: either words to the effect “What’s your problem with this trivial courtesy? Get a life!” or else “Ha ha nasty TERF bigots deserve to feel excluded and fearful.” I’ve done a rough-and-ready analysis, sorting about the hundred or so of these quote tweets into categories. I counted 66 that fell into the “ha ha nasty terven” category, 26 into the “harmless courtesy” camp –  plus two that agreed with the original tweet and a few I couldn’t easily classify. 

The typical HR response to any push-back against pronoun rituals is of the “harmless courtesy” flavour. Why, they ask, are you making such a big deal of this little thing? Why can’t you just be kind and polite like everyone else? Or at least not make an ungracious fuss if your colleagues want to be kind and polite! If you argue that pronoun rituals are an attempt to make a particular highly contentious belief system seem so mainstream that it can be treated as the default – and shame anyone who doesn’t subscribe to it – you’ll be met with polite bafflement. “What makes you think it’s that? It’s just a trivial courtesy that will make a marginalised group feel a little bit more comfortable. How much can it possibly cost you?”

This type of response was well represented in the sample I looked at. Here’s a typical one:

This is a perfectly understandable take from decent, well-intentioned people who haven’t given the matter a great deal of thought. But it’s hard to sustain in the teeth of the evidence provided by the other, much larger category of quote tweet. There are more than twice as many of these as from team “harmless courtesy”, and they make my case for me vividly – sometimes in unmistakably menacing terms. Here’s a small sample of that type: 

This was a reply, not a quote tweet

The first of these is admirably clear: “MAKE THE BIGOTS STFU [for the pure in heart, that translates “shut the fuck up”]. THAT’S THE BLOODY POINT.” 

This is the heart of the matter. A handful of responses of this type might have been explained away as the bad behaviour of a few hotheads. But the numbers involved make that impossible to sustain. 

A clear majority of the hundreds who have engaged with this tweet by quote-tweeting it are saying in terms that the point of including pronouns in email signatures is to make “TERFs” feel excluded and fearful. 

The quote tweets have vividly dramatised both aspects of the technique recommended by Uncle Screwtape in the extract at the start of this blog: one group (Zoë Irene et al) boasting that they are indeed saying something with the express purpose of giving offence – while the other group takes on the role of maintaining a sense of grievance when offence is taken. 

Expressing loathing and contempt for those who hold gender-critical views may be fashionable; it even seemed to have a degree of judicial sanction until the first instance decision in Forstater was corrected on appeal. But the lesson from the judgment of the Employment Appeal Tribunal in Forstater needs to sink in. Gender-critical beliefs are within the protected characteristic of “religion or belief” (so too, probably, is sex denialism); harassing or discriminating against your employees on grounds of their protected beliefs can prove expensive. One of the things to be taken into account by a court or tribunal in determining for the purposes of a claim under the Equality Act whether conduct has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them is whether it’s reasonable for it to have that effect. The fate of this tweet could itself provide telling evidence. 

Single Sex Services: 10 Reasons why the Statutory Code should now be updated

The Equality and Human Rights Commission (EHRC) has released new guidance for single sex services regarding how lawfully to treat people of the opposite sex who have the protected characteristic of gender reassignment. The EHRC is mandated by the Equality Act 2010 to write guidance to help organisations understand how to apply the Act correctly.

Legal Feminist welcomes this guidance as there are problems with the EHRC’s 2011 Statutory Code (the Code). Other legal commentators, by contrast, say the new guidance is out of step with the Code. This article will set out why we consider the new guidance to be correct and why the Code needs to be updated.

In terms of accessing single sex services, we consider it fundamental that every service-user should know, at the point of access, and preferably beforehand, if spaces and services are single-sex or mixed-sex.

  • If a service provider allows people of both sexes to use a service together, it is not providing a single-sex or separate-sex service.
  • A GRC may change an individual’s state-recognised sex, but if a service-provider allows him or her to use a single-sex or separate-sex service for the opposite sex then it becomes a mixed-sex service. 

The Equality Act allows exceptions from its prohibitions of discrimination

The Act sets out exceptions where it is not unlawful to treat people of different protected characteristics differently because of those characteristics. We see this with age, where entry to certain services is restricted to particular age groups and also with sex. In both cases, the exceptions apply so long as the restriction is objectively justified as a proportionate means of achieving a legitimate aim.

Single-Sex Service Exceptions

There are three types of exception in the Equality Act (EA) which allow a service provider to provide a single-sex service. The first two apply to exclude men from women’s services and vice versa. The last allows the service-provider to continue to provide the same single-sex service despite gender reassignment. When an opposite-sex person has a Gender Recognition Certificate (GRC), the exclusion cannot operate on the basis of sex but instead on gender reassignment. The reason for this is that a GRC means that the differenting factor can no longer be sex (because legally the opposite-sex person is now considered the same sex). In all exceptions the decision to be single-sex must be objectively justified.

The 2011 EHRC Code provides nine positive examples of how service providers might successfully invoke the first two exceptions in order to ensure a single sex service. The examples demonstrate: 

  • Unconditional recognition of sexed needs, 
  • Consideration for effective and practicable service provision,
  • Consideration of intersectional protected characteristics  
  • Acceptance of intimate sexed needs in special care, supervision or attention,
  • Acceptance of female objections to male presence and contact

None of the examples require service users to justify their sexed needs or objections to the opposite sex’s presence or contact. There is no assumption that women are bigoted for their needs or objections.

Maintaining single-sex services regardless of GRC

Once a person has a GRC, the state recognises a change of legal sex status. A service provider therefore needs to apply the gender reassignment exceptions (set out in Schedule 3, part 7, para. 28 EA) in order to provide a single-sex service. These allow separate-sex services and single-sex services where objectively justified in relation to  gender reassignment. This last exception (relating to gender reassignment)  is badly handled by the Code. 

The standard of objective justification required for excluding male people with GRCs from female spaces should not be any different from those requiring exclusion of men from female spaces. The wording of the exceptions is replicated, so the exceptions should be subjected to the same test of objective justification.

The 2011 Code ought to provide user-friendly guidance to putting the Equality Act into practice but, in our view, it does not do this and makes ten errors, these are:

  1. Failure to Distinguish GRC Holders 

It fails to make a distinction between people who have the protected characteristic of gender reassignment but no GRC and those who have both. This is important because it determines whether the single sex exceptions apply on the basis of sex or gender reassignment. Remember the sex based exceptions are well explained with positive examples of how they work by the 2011 Code whereas the gender reassignment based exceptions are inadequately explained.

2. Departs from the Equality Act Explanatory Notes

The 2011 Code provides one example of a service provider’s supposed failure to use correctly the exception in relation to gender reassignment and no examples at all of proper uses of the exception. This is in striking contrast to the guidance for the other exceptions, which set out nine positive examples of situations where it will be lawful to use them.

This also contrasts with the approach in the Explanatory Notes to the EA, which give the example of a group counselling session provided to female victims of sexual assault, in which it would be permissible for organisers to prohibit a male to female transsexual person from attending as they judge that female clients may not attend. The 2011 Code adopts other examples of lawful discrimination in the Explanatory notes where they relate to sex based exceptions , but fails to use this one in relation to gender reassignment. 

3.         Impractical 

The Code states that the Paragraph 28 exception should only be used in exceptional circumstances, without describing such circumstances. This creates a higher bar than for the previous two exceptions, which relate to ordinary run-of-the-mill scenarios. There is no requirement in the statute for this exception to be treated differently from the others.

4.         Unworkable

It sets out that this exception should be applied on a “case by case” basis but does not give an example of any policy that is capable of being applied in such a way. There is nothing in the EA2010 that requires this application, in fact the case of Homer v West Yorkshire Police regarding objective justification warns against an ad hominem approach as potentially discriminatory (para 25).  

Case by case can only be workable if “case by case” relates to the particular services provided rather than the service users. as acknowledged by the Women and Equalities Select Committee.. Naomi Cunningham has already written for Legal Feminist on this  topic.

5.         Refers to out-dated case law

The Code regresses to the pre GRA 2004 position as per the A v West Yorkshire case, which we consider to rely upon the sexist criteria of being considered adequately feminine or masculine in presentation to “pass”. Relying upon unlawful sex discrimination will in turn render a single sex policy unlawful.

6.         Unrealistic

Many people detect biological sex even in those who try hard to pass.

It is impossible to base a functional policy on subjective perceptions of sex, or on someone being “indistinguishable” – and most transgender people are not. Many other service users will accurately perceive their biological sex and feel that the service provider is mistreating them in pretending to operate a single-sex service.

GRCs were intended to ensure that transsexual people who were undetectable as the opposite sex could keep their actual sex a secret. They were never intended to make others pretend that they do not perceive sex.

7.         Removes Consent

Women accessing a single-sex service are not consenting to share it with the opposite sex. Labelling a changing room “women only” but admitting any male person whom the service provider deems to “pass” is tantamount to using deception to obtain the consent of the women who use that facility. It is unacceptable that some women – in particular traumatised women and some religious women – will self-exclude from such facilities. 

8.         Encourages harassment

The EHRC Code suggests that service-users’ perceptions of sex may be bigoted. (Para 13.60 of the EHRC statutory code states that “Care should be taken in each case to avoid a decision based on ignorance or prejudice.”) 

This seems to have encouraged service providers such as the Government Legal Service to create a policy that employees who state that they want single-sex facilities should be investigated and potentially disciplined for requesting them. This goes far beyond the requirement for objective justification in the EA and becomes harassment of employees seeking to assert their own sex-based rights.

9.         Lacks of consideration of dignity, privacy and previous trauma

Providing cubicles within a mixed sex-changing room does not address everyone’s needs. Many people still want to know whether the room in which the cubicles are situated is single-sex or mixed-sex. Knowing that there is a man in the next cubicle will make many women and girls uncomfortable enough to self-exclude. It may re-traumatise those who have previous experience of sexual abuse and it may mean that women from certain cultural and religious backgrounds do not feel able – or even are not allowed by their families – to use the services.

10.      Lacks consideration of Violence against Women and Girls

The vast majority of violence committed against women and girls is on the basis of sex by male perpetrators. Abuse ranges from the physical to the psychological and includes the use of smart-phones and other technology to take photographs and films of women and girls. The 2011 Code does not acknowledge these abuses and was written before recording devices were so widely available. Nor does the Code acknowledge that there is no evidence basis to show that people will behave any differently from others  of their natal sex category in this regard.