A council worker who chose to sign off emails with ‘XYChromosomeGuy/ AdultHumanMale’ – instead of an option to include his preferred pronouns if he wished – has lost his claim for belief discrimination.
While finding in favour of East Riding of Yorkshire Council in the case, the judge described its policy on preferred pronouns as “poorly thought through and badly executed”.
An employment tribunal in Hull accepted that James Orwin’s belief that biological sex was immutable constituted a valid philosophical belief, but found the treatment he experienced was not because of this but due to his refusal to remove his provocative email sign-off that was not acceptable to his employer.
Orwin, the claimant, began working as an ICT project officer for the council in 2018. In April 2022, Caroline Lacey, then chief executive of the local authority, emailed all employees asking them to add a new image to their email signature relating to its corporate priorities.
Preferred pronouns
She added: “I also want to take the opportunity to invite you to consider adding pronouns to your email signature, should you wish to do so.
“Clearly this is a matter of individual choice, but I am keen to ensure that all staff know that the choice to do so is available to them and that they will be supported in that choice in line with our workforce principles.”
The email also linked to guidance on “EDI – Attracting a modern workforce” and another document called “Why you may choose to use pronouns”, providing four examples of “she/her, he/him, they/their and ze/hir”.
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In the tribunal’s view, the tone and meaning of the guidance was that East Riding council employees were free to identify by whatever pronoun they felt applied to them.
In his witness statement, Orwin told the tribunal: “Had the email contained a genuine invitation simply for colleagues to add pronouns to email signatures and not facilitated self-identification I would have chosen… not to display pronouns since it is my firm belief that announcing pronouns in emails or before meetings is a political gesture designed to intimidate anyone who does not embrace the contested ideology of gender identity.”
He continued: “Holding the beliefs that sex is binary and immutable, that gender is a social construct, and that a policy of self-identification – a glaring example of an ad hoc policy hurriedly introduced by the [council] with inadequate scrutiny and little due diligence or consideration – presents a risk to both the safeguarding of vulnerable people… and the protection of women’s spaces, I felt the only way for me to openly challenge the initiative was to adopt a position of critical compliance. In other words, I decided to precisely follow the guidance….”
The guidance allowed staff to choose “other” if they did not wish to follow a standard option so that they could create their own pronouns.
Having communicated his objections with management, Orwin committed to using the email sign-off “(XYChromosomeGuy/ AdultHumanMale)” but delayed doing so while the dispute with his employer continued. The respondent asserted to the tribunal that Orwin’s choice of pronouns did not amount to pronouns on a grammatical basis.
‘Garbage’
When asked by management if he could choose not to add pronouns to his email footer, or choose from the prescribed list, Orwin replied: “Not adding a pronoun would be accepting this garbage, and is not an option I can choose. I think what I will be using is bound to challenge the agenda of those who are implementing it.”
The tribunal found that the communications from Lacey and the guidance did not restrict the preferred pronouns to a prescribed list and did give employees the option to add their own pronouns.
In response to an email where Orwin gave “notice that from this point forward (in pursuit of equality), I will be using the most precise expression of my gender identity” and used the signature “James Orwin, (XYChromosomeGuy/ AdultHumanMale)”, management told the claimant to remove the footer and said that “it had been deemed potentially transphobic”.
After being told in writing not to use the sign-off a second time, the tribunal found that Orwin continued to include it contrary to the management instructions because he was “using the footer to make a point about what the claimant perceived as the ridiculousness of the policy and in an attempt to persuade the respondent to change its policy about gender self-identification in emails”.
‘XY-Chromosome-Guy’
The tribunal agreed with Orwin that the council had not provided a list of pronouns for employees to choose from, rather it had offered employees the opportunity to use their own preferred pronouns.
The judgment said: “However, we also find that by [May 2022] the claimant had been told formally in writing three times not to use ‘XYChromosomeGuy/ AdultHumanMale’ in the claimant’s email footer, but the claimant continued to do so. The respondent was, however, willing to discuss with the claimant a form of wording that the respondent would find acceptable. The claimant was not willing to engage with that offer.”
In a letter on 20 May, the council suspended Orwin who was informed that there would be an investigation into an allegation of “Serious insubordination in that you have failed to follow a reasonable management instruction, on multiple occasions, to remove the wording (XYChromosoneGuy/ AdultHumanMale) from your council email footer”.
An investigation by East Riding found that Orwin had been provided with “a reasonable choice and rationale behind the choice. Thereafter James has possibly taken that choice as an opportunity to raise political issues within the workplace.”
The tribunal panel agreed but also that the council first raised the political issue of pronouns in the workplace by allowing employees to self-identify in their emails. “We rely on our judicial knowledge of the fact that transgender status and gender critical ideology are currently political and highly contentious issues,” said the judgment.
The outcome of the disciplinary hearing took into account Orwin’s service since 2018 with no previous conduct issues but considered that that did not amount to sufficient mitigation to avoid dismissal.
It found that Orwin had not been subject to a detriment as he was not compelled in any way to choose to use a preferred pronoun. He took the opportunity to appeal but this was not upheld.
Philosophical belief
In its judgment, the tribunal found that Orwin’s gender-critical belief is a philosophical belief within the meaning of section 10 of the Equality Act 2010.
It found that the reason for alleged acts of discrimination by East Riding was because Orwin expressed the intention to adopt the preferred pronouns “XYChromosomeGuy/ AdultHumanMale” and refused to refrain from using them when instructed so.
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“We therefore find firstly that the reason for the treatment of the claimant was not because of the claimant’s protected belief.”
The decision says: “In our judgment, this question is answered in this case by asking: ‘Why did the claimant create the email footer?’ The simple answer… is as an act of protest. The claimant knew that it was a provocative act and the purpose of doing the deliberately provocative act was to try to persuade the respondent to change their policy.
“The claimant said that the use of the footer was bound to challenge the agenda of those who are implementing it. It was not, as a matter of fact on the findings we have made, done out of a need to adhere to the claimant’s gender-critical beliefs or ‘as the most precise expression of the claimant’s gender identity’. The claimant was, in our judgment, mocking the idea of gender self-identification.”
Badly executed
It added: “In our judgment, the implementation of [East Riding’s] policy was poorly thought through and badly executed. The guidance was vague and allowed the claimant to adopt the position the claimant did. However, this does not detract from our conclusion that the purpose and intention of the policy was to comply with the respondent’s public sector equality duty.”
The judgment dismissed Orwin’s claims of direct discrimination, unfair dismissal and wrongful dismissal.
The judge concluded: “The fact that [Orwin] stated very clearly that [he] would not remove the footer and would not comply with a management instruction indicated that [he] had decided to no longer consider himself bound by the contract of employment. It is an obvious implied term of contracts of employment that employees will follow reasonable management instructions. That term is important – it goes to the heart of the employment relationship.”
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