We have been contacted by many members recently asking what to do about the fact that their employer has asked them to declare their preferred gender pronouns, usually below their name at the bottom of an email or official correspondence. Consequently, we thought it would be useful to pull together some FAQs on this issue. In case there are any terms you do not understand we have included a short glossary at the end.
Background
Controversies over pronoun use are part of a wider public debate about transgender identity. This debate touches on issues such as women’s sex-based rights, how doctors and other medical professionals should respond to adolescents presenting with gender dysphoria and whether it is fair for transwomen athletes to compete against biological women in women’s sports. Some people think that using a trans person’s preferred pronouns, or telling people what your preferred pronouns are, is tantamount to taking a pro-trans position. For this reason the subject of pronouns, while seemingly trivial, is deeply controversial.
Some trans people and lobby groups claiming to represent them – like Stonewall, Mermaids and Gendered Intelligence – believe that ‘deadnaming’ or ‘misgendering’ a transgender person, or failing to use their preferred pronouns, can be actively harmful because it invalidates or fails to acknowledge their true ‘gender identity’. One argument for making workplace gender declarations common practice when introducing yourself or corresponding with someone by email is that it makes it less likely that a person will inadvertently ‘harm’ a trans person in this way.
Many businesses and employers, prompted by organisations like Stonewall, have introduced policies and practices designed to better support trans and non-binary employees. Some of these initiatives have been in line with equalities legislation, such as the provision of medical leave for employees undergoing gender reassignment. However, some workplace policies relating to pronoun declarations are, we believe, in breach of people’s speech rights.
The Free Speech Union supports the rights of those individuals who voluntarily choose to declare their gender pronouns at work AND the rights of those who choose not to. If you are facing pressure at work to declare your preferred gender pronouns, here’s what you need to know.
What do workplace pronoun declarations have to do with free speech?
For some people, declaring, or not declaring, your preferred pronouns has come to symbolise the position the speaker takes on the political debate about gender identity. Among our members, we’ve found it common for them to be perfectly at ease with using a trans person’s preferred pronouns, regarding it as a matter of simple politeness, but they draw the line at compelling people to do this and do not want to make a public declaration of their preferred pronouns because they think that would be tantamount to affirming the validity of gender identity ideology.
What does the law say about pronoun declarations?
There are no laws relating specifically to pronoun declarations, but there are some that touch on the issue.
The Equality Act 2010: The Equality Act 2010 provides legal protection from discrimination, victimisation and harassment on the grounds of nine protected characteristics, including ‘Religion or belief’.
In June 2021 an Employment Appeals Tribunal found that Maya Forstater’s gender-critical beliefs constituted a protected characteristic under the category of philosophical belief. Gender-critical beliefs are therefore protected by the Equality Act and harassing or discriminating against an employee because of their gender-critical beliefs could give rise to a legal claim. It is also possible that someone who does not hold gender-critical beliefs, but who refuses to make pronoun declarations, could sue in the same circumstances since lack of belief is also a protected characteristic, i.e., you are not supposed to be discriminated against because you do not hold a particular belief, even if you do not hold the opposite belief. However, ‘gender reassignment’ is also a protected characteristic and it is equally possible that a tribunal might find for an employer in such a case, particularly if the claimant had harassed a trans colleague by ‘deadnaming’ or ‘misgendering’ them. Even if the claimant were acting on his or her deeply held belief, the law would not protect manifestation of that belief if it constituted harassment. These issues have yet to be fully resolved in the courts and tribunals system.
The European Convention on Human Rights: In 2014, Northern Irish confectioners Ashers Baking Company refused to supply a customer with a cake bearing the message “Support gay marriage” on the grounds that the message went against the bakers’ sincerely held Christian religious beliefs. Mr. Lee, the customer who had ordered the cake, initiated legal proceedings against the bakers, arguing that he had been discriminated against on the basis of his sexual orientation.
After an initial finding in favour of Mr. Lee in a lower court, the Supreme Court ruled that the bakers’ actions were not discriminatory. President of the Supreme Court Lady Hale found that Northern Irish anti-discrimination law had to be interpreted in a way compatible with Articles 9 and 10 of the European Convention on Human Rights, which protect the right to freedom of thought, belief and religion, and the right to freedom of expression. In coming to this decision, Lady Hale recognised a right against compelled speech:
The right to freedom of expression does not in terms include the right not to express an opinion but it has long been held that it does. A recent example in this jurisdiction is RT (Zimbabwe) v Secretary of State for the Home Department… Lord Dyson held that the principle applied as much to political opinions as it did to religious belief: “Nobody should be forced to have or express a political opinion in which he does not believe.”
She went on:
The bakery was required, on pain of liability in damages, to supply a product which actively promoted the cause, a cause in which many believe, but a cause in which the owners most definitely and sincerely did not.
If workplace pronoun declarations are an implicit endorsement of gender identity ideology, and employees who refuse to make pronoun declarations are penalised by their employers, then certain consequences may follow. If the employer is a public body – and therefore obliged to comply with the Human Rights Act 1998 – a court may find that the pronoun requirement constitutes unlawful compelled speech. In the case of other employers, the picture is more complicated. The employer would not be able to justify its pronoun policy on the ground that it is required by the Equality Act 2010, because the Supreme Court held that the Act does not require people to say things they do not believe. The employer may be able to identify other legal grounds, however, to justify the policy.
In short, compelled speech is a new principle in UK law, and the implications of the judgment in the Ashers Bakery case have yet to be fully spelt out in the courts.
Can my employer ask me to display or announce my pronouns at work?
The short answer is yes. There is nothing to prevent your employer asking employees to make voluntary pronoun declarations. However, speech rights are likely to be engaged when there is an element of compulsion.
Compulsion could be understood as falling into two categories:
Formal Compulsion: An employer publishes a workplace policy mandating that employees make public pronoun declarations in the course of their work as a condition of employment. If an employee fails to make a pronoun declaration when required they are subject to an official reprimand or disciplinary action, up to and including dismissal.
Informal Compulsion: An employer makes an informal request or introduces a voluntary code of conduct which asks employees to make workplace pronoun declarations. However, employees are led to understand that, despite what the code says, as a matter of fact they are expected to comply with the request and adverse consequences may follow if they do not.
Can I refuse if my employer asks me to display or announce my pronouns at work?
Your employer is entitled to ask you to make a pronoun declaration on an entirely voluntary basis, and in turn you are entitled to politely refuse. If the request is voluntary and you are not being addressed individually – for example, if the request is made in a company-wide email – then you might consider simply ignoring it. Likewise, if your employer asks you to use an email template that includes a default setting for pronouns you could just leave that section blank. However, if you are being addressed directly or questioned about your decision not to declare your pronouns at work you may need to respond.
If your employer requires you to declare your pronouns, and you do not wish to do so, you should contact the Free Speech Union or seek legal advice.
My employer wants to know why I have not made a workplace pronoun declaration. What should I do?
There are strongly held views on both sides of the debate about pronoun use, which is why it is important that you are polite and diplomatic when explaining your reasons for not declaring your pronouns. Often, the test of whether an employee can be punished for refusing an instruction from a superior is whether the instruction was reasonable or not. If you set out your reasons for not wanting to make a declaration in a calm and considered way it will be harder for your employer to demand that you do it and remain entirely reasonable.
If you think that a dispute is likely, you should seek advice by contacting the Free Speech Union or a solicitor.
I believe I am experiencing formal or informal compulsion to make workplace pronoun declarations. What should I do?
If you believe you are experiencing formal or informal compulsion to make workplace pronoun declarations then there are a number of things you can do:
● Keep a careful record of detriments you believe you have suffered as a result of your failure to make a workplace pronoun declaration, including dates, names and all relevant correspondence.
● Speak to sympathetic colleagues and try to act collaboratively.
● Join the Free Speech Union and contact our case work team for bespoke guidance on how best to manage your situation.
Glossary
Gender Identity: A term used to describe a person’s internal sense of whether they are male or female, which is not determined by their ‘sex assigned at birth’. Some people believe that everyone has a gender identity and regard this, and not your ‘sex assigned at birth’, as the key determinant of what sex you really are.
Gender Identity Ideology: The belief that a person’s sex is not a fixed characteristic determined by biology (i.e., the possession of certain chromosomes), but a social construct, much like gender.
Preferred Pronouns: The pronouns that a person would prefer other people to use when referring to them, regardless of their biological sex.
Workplace Pronoun Declarations: When a person publicly announces their preferred pronouns in the course of their work. A person might declare their preferred pronouns verbally in meetings, in written communications (such as in their default email signature) or through visual symbols such as pronoun badges.
Deadnaming: Using the birth name of a trans person who has transitioned and changed their name.
Misgendering: Referring to a trans person using pronouns that reflect their biological sex rather than their preferred gender identity.
Gender Critical: The belief that biological sex is binary and fixed and that it is this, not a person’s gender identity, that should determine whether sex-based women’s rights apply to them. Sex-based rights include access to women-only spaces like ladies changing rooms and domestic refuges. People who hold gender-critical beliefs often regard pronoun declarations as an implicit endorsement of gender identity ideology, with which they profoundly disagree.