Thousands of employees in the probation service have been issued a list of words and phrases to avoid using in the workplace, in a bid to promote inclusion for transgender people.
As reported by the Sunday Telegraph, a glossary titled “recognising transphobic coded language” was circulated among thousands of HMP Probation Service (HMPPS) works, via the HMPPS pride in prisons and probation LGBT+ staff support network.
The document reportedly explains that certain phrases were “turning what would be considered overt discrimination into covert behaviour”.
The list of words and phrases staff are being encouraged to avoid include the term “gender-critical” and “protect women’s spaces/protecting women and girls”, which the document says “relies on equating trans women with being predatory men, to play on unfounded fears and convince people that supporting trans inclusion threatens their safety”.
According to the publication, the glossary states: “Whilst passing uses of these phrases might not be considered misconduct, the importance of challenging their use cannot be overstated.”
However, a spokesperson for the prison service said the guidebook was “published by a staff network” and that its content was not approved prior to being sent out.
“Following its publication, HMPPS is reviewing the rules around internal communications to staff from network groups,” the spokesperson added.
The case of Maya Forstater
While efforts to promote greater inclusion for transgender employees is an admirable and necessary endeavour, does policing language in the workplace prove effective? Events earlier in 2022 have created some interesting case law for HR leaders to consider.
Maya Forstater, a woman who worked as a tax expert for a think tank, did not have her contract renewed due to a series of tweets in which she protested a government proposal.
The proposal included language which allows trans people to live their preferred gender, including self-identifying as the gender they believe is best for them. Her tweets went on to include what the court has called ‘mocking’ yet ‘part of the debate’ on social media. Anyone who’s been in a ‘debate’ on Twitter can testify that this is often the case!
While Forstater lost her initial employment tribunal, mainly because the Equality Act 2010 protects transgender people from being discriminated against for their gender identity, which includes denying their transitioned personhood, ‘deadnaming’ them (referring to them by their previously given name) or misgendering them.
The gender binary activist has since won on appeal, with the Employment Appeal Tribunal finding that her beliefs in gender immutability were so deeply held, they were akin to religious or deeply held philosophical beliefs. A quick or even longer look at Forstater’s Twitter timeline indeed shows that she tweets almost exclusively about transgender people and issues, indicating the depth of her beliefs.
At the tribunal decision, Mr Justice Choudhury shared that Forstater’s beliefs “may well be profoundly offensive and even distressing”, but that “they must be tolerated in a pluralist society”.
He went on to stress the legal extent of the decision, saying: “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.”
From an HR and leadership perspective, the Justice said that it is important that people realise that this judgement, like all tribunal judgments, was taken on an individual case merit, and that the judgement does not confer merit to Forstater’s view. He went on to remind people that, whatever their personally held beliefs, they are still not allowed to misgender trans people and that employers are still able to “provide a safe environment for trans persons”.
Forstater’s former employers, CGD, stated that they believe the ruling was incorrect and that “this type of offensive speech causes harm to trans people”.
Worker unfairly sacked over criticism of diversity training
The urging of workers to prohibit certain words at work also raises issues around freedom of speech in the workplace.
Earlier this year, an employment judge ruled that workers have a “fundamental right” to express their belifs on social issues, regardless of how strongly certain colleagues may disagree with them.
Therefore, another case for HR to take note of is that of Simon Isherwood, who in 2022 won an unfair dismissal employment tribunal, having been sacked for making derogatory comments about his company’s diversity training.
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Isherwood had been dismissed from his job as a conductor with London Northwestern Railway after concerns were raised about his reaction to a diversity training session, including an apparent disagreement with trainers using the phrase ‘white privilege’.
The webinar reportedly covered topics including what white privilege is, how to “change the privilege and power structures”, and “how to be an ally”.
Isherwood, attending via video call, was overheard telling his wife: “You know what I really wanted to ask?... and I wish I had, do they have black privilege in other countries? So, if you're in Ghana?...”
Isherwood later said he made the remark because he felt those hosting the session were “indoctrinating their view on us”, adding that they had “implied all white people are racist - but I'm not”.
He was later sacked after WMT ruled he had “caused offence, brought the company into disrepute and breached our equality, diversity and inclusion policy and the code of conduct”.
But an employment judge later concluded that Isherwood was unfairly dismissed, saying he has a “fundamental right” to hold certain views on social issues, even if co-workers found them “odious or objectionable”.
In his ruling, judge Stephen Wyeth said: “Freedom of expression, including a qualified right to offend when expressing views and beliefs [in this case on social issues], is a fundamental right in a democratic society.
“It simply cannot be right that employees are not allowed to have views that they privately express about courses they attend, however odious or objectionable others might consider them to be if they come to know of those views.”
Data highlights LGBT+ concerns in the UK workplace
While debate rages on about whether policing language is a help or hindrance to the fight against discrimination, what is undeniable is that LGBT+ workers need and deserve more support in the workplace. However, one in five (21%) workplaces do not have any policies in place to support their LGBT+ staff at work, according to a 2022 poll published by the Trade Union Congress (TUC).
The poll of around 1,000 HR managers – run for the TUC by YouGov, also found that just one in four (25%) managers said that they have a policy setting out support for trans (including non-binary) workers who wish to transition to live as another gender.
TUC General Secretary, Frances O’Grady, said: “Lesbian, gay, bi and trans people deserve to feel safe and to be respected at work.
“But it’s shocking so many workplaces don’t have specific policies in place to support their LGBT+ staff.
“Without these policies, too many LGBT+ workers experience bullying, harassment and discrimination at work.
“A step change is long overdue. Ministers must introduce a new duty on employers to protect all workers from harassment by customers and clients.
“And government should also introduce a statutory requirement for large employers to report on their LGBT pay gaps – in the same way they do their gender pay gaps – with action plans detailing how bosses will address these inequalities.”
Government action needed
The TUC is calling on the government to introduce a range of measures to support LGBT+ people at work, including:
LGBT+ pay gap reporting: Ministers should introduce a statutory requirement for large employers to report their LGBT+ pay gaps and employment rates – with regular monitoring and action plans detailing how employers will address these inequalities. Polling suggested that the LGBT+ pay gap is around 16%.
Protection from workplace bullying and harassment: The government must consult with unions on a strategy to make sure workplaces are safe for all LGBT+ people. As a minimum, the government should introduce a new duty on employers to protect workers from harassment by customers and clients.
Taking these figures into account, it’s essential to recognise that for an LGBT+ inclusive workplace environment, educating others, encouraging allyship and being vocal about inclusivity are just a few fundamental ways to push for inclusivity in businesses for employees.
