Preferred pronouns and gender identity – employer’s considerations

Towards the end of last year Marks & Spencer were the latest retail chain to introduce optional preferred pronouns on their staff badges, and, as announced on LinkedIn, the retailer is “encouraging as many of them as possible to wear whichever combination of pronouns is right for them”.

Many companies are now enabling their employees to share their preferred pronouns, often in email signatures, as a way to increase inclusivity amongst their workforce, to open discussions about gender identities, and to discourage assumptions on the basis of name or appearance. From an employer perspective, the sharing of preferred pronouns raises a number of wider legal issues to consider. Should the move be compulsory, rather than optional? Are some employers not engaging in the preferred pronoun debate for fear of getting it wrong? Can employees be disciplined for misgendering their colleagues, either accidentally or deliberately?

Misgendering

Misgendering is when an individual is referred to by the incorrect pronouns – it can be disrespectful, deeply upsetting, and potentially harmful. The option to have preferred pronouns set out for colleagues (and customers) should therefore help to minimise the instances of misgendering. Staff training on equality, diversity and inclusion will help to reinforce the importance of correctly addressing individuals and internal policies should be reviewed for opportunities to further include the trans and non-binary community.

However, employers should be cautious about imposing any compulsory obligation to reveal preferred pronouns, as this may increase the issues at hand rather than create an encouraging and inclusive atmosphere.

Discrimination and Harassment

Employers should be well aware of the discrimination and harassment laws and protected characteristics, of which the two most relevant in this context are sex and gender reassignment. The Equality Act 2010 defines sex as “a reference to a man or to a woman”, and individuals may be excluded from this characteristic if they do not identify as a man or a woman. However, the recent case of Taylor v Jaguar Land Rover Ltd confirmed that gender fluid and non-binary individuals were still protected under the gender reassignment characteristic. It is important to note that in relation to gender reassignment, the individual does not need to have undergone or be in the process of reassignment as the protection will also apply to those proposing to undergo the process. In addition, physiological or “other attributes of sex” are included, meaning that clothing, hairstyle, and preferred pronouns can all be protected attributes.

Discrimination and harassment claims often raise the question of whether the alleged perpetrator knew of the individual’s relevant characteristic. Although it is worth noting that the focus of a harassment claim is actually a test on the effect of the behaviour – how did the individual subjected to the behaviour feel? If the alleged perpetrator did know of the characteristic and the behaviour was deliberate, it is likely that this would strengthen the claim. The ability for employees to share their preferred pronouns will therefore have a significant impact on this part of a discrimination claim.

For employers, robust policies supported by recent relevant training may demonstrate all reasonable steps were taken to prevent discrimination/harassment and therefore may provide a defence to a claim. Employers may also wish to consider reviewing their disciplinary procedures to include instances where trans and non-binary individuals are subjected to behaviour such as deliberate misgendering.

Balancing everyone’s rights

In creating a more inclusive workplace, employers will often be faced with conflicts between employees (or groups of employees). Unconscious bias, differing religious or social beliefs, potentially caused by generational differences and upbringing, are all potential minefields for employers to navigate.

While some conflicts cannot be mitigated despite the best efforts of employers, fair policies and regular training will greatly assist in setting out what everyone can expect from the workplace environment. If employers feel that certain groups are underrepresented and need more proactive support, these expectations should be set out clearly to all staff.

Employers should also ensure that employees are signposted to various forms of support, such as an Employee Assistance Programme or internal networks/groups, and that any allegations or grievances are thoroughly investigated.

Practical steps to take now

• Review internal policies, procedures, and record keeping – do these need updating to include more gender inclusive language/options or do they indirectly put trans and non-binary individuals at a disadvantage? For example, consider whether:
  • parental leave policies use gender neutral language
  • dress codes separately refer to men and women only
  • facilities are accessible for trans and non-binary individuals
  • an employee can easily update their gender on employer records
• Provide update training for all staff on equality, diversity and inclusion and keep a record of attendance.
• Consider creating an internal LGBT+ network and highlight other avenues of support, such as an Employee Assistance Programme.