Thread by @stephenwhittle

1. Can using pronouns to misgender a person, including a Trans person, constitute unlawful harassment?

The law does not as a rule regulate pronoun use. There are a few: e.g. Lord , Lady, Sit which carry legal constrsints in very limited settings…. 1/13

2. … But he/him, she/her, they/their are just matters of social convention, used by people to categorise individuals & to be polite.

There are 2 types of unlawful harassment:
- Criminal (The Protection from Harassment Act 1997)
- Civil (The Equslity Act 2010 s. 26)…

3. … CRIMINAL: the Protection from Harassment Act s.1. states a person must not pursue a course of conduct which

- amounts to harassment of another,
- which they know or ought to know amounts to harassment of the other.
Or
- that involves harassment of 2 or more people ….,

4. - which they know or ought to know is harassment, & which
- they intend to persuade any person (whether or not 1 of those harassed)
- to not to do something that they are entitled or required to do, or
- to do something they is not under any obligation to do. …

5. The course of actions is not determined by the Act & therefore words can constitute harassment.

Criminal harassment is a course of conduct, so the action must happen on at least 2 separate occasions, but these need not take exactly the same form though must be related. …

6. There is no minimum or maximum time between when the occasions took place, but they must not be so far apart as to become unrelated.

Essential to Criminal harassment is the perpetrator knows/ should know the action is harassing to the 1 or more people it is directed at. …

7. What format, harassment takes is evidential, but can be anything a court determines acts upon the victim

Claiming the misgendering of a T person is the truth/accurate is irrelevant ...

8. The court is
concerned with
a. whether the person knew or should have known
b. the impact on the victim &
c. If it was a ‘course of conduct’

So Yes, repeated misgendering of a person can lead to a criminal conviction

8. The Equality Act 2010 s.26 protects those with a protected characteristic, including sex or gender reassignment from harassment

Harassment is
- unwanted conduct
- related to a protected characteristic that
- has the purpose or effect of violating someone's dignity or…

9. … - creating an intimidating, hostile, degrading, humiliating, or offensive environment.

The Equality Act does not require a course of conduct, so once can be sufficient.

The act may protect the individual who is an employee or service user from liability

10. But Employers have a duty to take reasonable steps to prevent and address harassment in the workplace, including harassment by third parties such as customers .

An employer can be held vicariously liable for the actions of an employee, or customer. They may well …

11. find the harassment amounts to gross misconduct

Similarly a Service provider can be liable for harm suffered by the victim if they have not taken reasonable steps to protect service users

The harassment must be unwanted by the person experiencing it.

11. The harassment must either be intended to have the effect of violating dignity or creating a hostile environment, or actually have that effect

So yes, misgendering can be unlawful harassment under the provisions of the Equality Act

13. The solution is to be polite, remember we - not the law - choose our pronouns that suit us.

Referingu to people by their preferred pronouns is social convention & polite

Mistakes are tolerated provided an effort is made to get pronouns correct once a preference is known

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