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Old 28th September 2021, 10:01 PM   #41
Meadmaker
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Originally Posted by mumblethrax View Post
And? The courts have found neither to be unconstitutional, so this is kind of irrelevant.


Like I said, they already have made such a ruling.
No. They haven't. The rulings that they have made have not addressed the issue.

the closest ruling I'm aware of was their ruling in the Masterpiece Cake Shop case, where they basically ducked the issue. They ruled in favor of the cake shop owner who refused to make a cake for a gay wedding. However, they didn't rule on the merits of the case itself. They sent it back to the state saying that the board who decided it on the state level acted with prejudice against Jack Phillips' religious beliefs. Subsequently, another person asked Jack Phillips to make a cake celebrating a gender change, (or something.....I can't remember the exact occasion) Jack refused, and that resulted in new litigation, which will probably one day make it to the Supreme Court. Time will tell.


In the case of the Michigan funeral parlor, they ruled that employment rights of transgender people were protected. However, that case didn't address the legal issues that the OP was speculating about. It didn't address whether the employer or anyone else could be compelled to address the trans-woman as "she", and it didn't address whether anyone could claim a religious exemption from any form of the anti-discrimination laws or policies.

So, you can't fire someone for being transgender. However, the court has never addressed what you have to call them, or whether you can be compelled to call them anything, or if most people are compelled to call them something, can someone claim a religious exemption and retain the right to call them something they want to call them based on their religious view.
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Old 28th September 2021, 10:10 PM   #42
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Oh God. Just call these freaks whatever they want to be called, I suppose. But, can we somehow deal with the plural and singular issue? I feel like the only reason this is lingering is because nobody wants to be called an "it".
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Old 28th September 2021, 10:38 PM   #43
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Originally Posted by Hercules56 View Post
No, calling students "ass holes" would clearly be offensive and rude.

You're assuming that someone might call a transgender woman "sir" simply and only to be rude & offensive. No chance it might be due to the belief that gender is not as fluid as current Western society wants us to believe it is. For humans.
But what about the first amendment????!?!?!??!?

This is my point. The first amendment is not relevant.

Whether you want to argue what the rules of the school are or ought to be, falling back on the first amendment is silly because it simply is not the basis for the decision.
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Old 28th September 2021, 10:41 PM   #44
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Originally Posted by Meadmaker View Post
No. They haven't. The rulings that they have made have not addressed the issue.
It's in the link before your first post in this thread.

Quote:
However, the court has never addressed what you have to call them, or whether you can be compelled to call them anything, or if most people are compelled to call them something, can someone claim a religious exemption and retain the right to call them something they want to call them based on their religious view.
If the only reason anyone can come up for refusing to use someone's preferred pronouns is "because of your sex", then it's straightforward sex discrimination according to the reasoning the court put forward in Bostock v. Clayton County. And that does indeed seem to be the only reason anyone ever comes up with. Read the decision and this becomes pretty clear. Barring a major change in the makeup of the court, it's not hard to see how they'd likely rule on a not terribly different set of particulars.

Which is presumably why the OCR, DOJ, and DOE can see the writing on the wall.
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Old 28th September 2021, 11:00 PM   #45
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Originally Posted by Warp12 View Post
Oh God. Just call these freaks whatever they want to be called, I suppose.
Well that's very generous of you.

Originally Posted by Warp12 View Post
But, can we somehow deal with the plural and singular issue? I feel like the only reason this is lingering is because nobody wants to be called an "it".
"They" is a singular pronoun.
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Old 28th September 2021, 11:39 PM   #46
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Originally Posted by Hercules56 View Post
Question: do penalties for refusing to use "appropriate pronouns" for transgender men & women, on publicly funded school grounds, violate the 1st Amendment?
Have the many, many, other ways that publicly funded schools restrict the speech of their students and teachers ever been considered a violation of the 1st Amendment?


Like, why not worry about whether or not telling off a teacher and being penalized is a violation of the 1st Amendment, which surely happens way, way, more than misgendering, before worrying about obscure stuff like that?
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Old 29th September 2021, 01:36 AM   #47
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Not specifically about the First Amendment, but my job requires me to ensure people complete government forms about their personal details. There is an option for people to identify as Mr, Ms, Mrs and Miss. I normally don’t complete this because it has no impact on what the form does.

But with covid and zoom, I give control to people to complete the form. I am staggered at the number who choose “Mrs” and even “Miss”.

Not completely relevant, but still curious.
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Old 29th September 2021, 01:58 AM   #48
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Originally Posted by lionking View Post
Not specifically about the First Amendment, but my job requires me to ensure people complete government forms about their personal details. There is an option for people to identify as Mr, Ms, Mrs and Miss. I normally don’t complete this because it has no impact on what the form does.

But with covid and zoom, I give control to people to complete the form. I am staggered at the number who choose “Mrs” and even “Miss”.

Not completely relevant, but still curious.
When asked on a form to identify my gender, I usually choose "prefer not to say" where that is an option, because it is rarely relevant.
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Old 29th September 2021, 02:14 AM   #49
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Originally Posted by arthwollipot View Post
When asked on a form to identify my gender, I usually choose "prefer not to say" where that is an option, because it is rarely relevant.
What’s worse is the form has only two choices for “sex” but doesn’t have a “gender” choice at all.

I suspect the form will soon be amended. I once had a case where I was dealing with a person who was transitioning. The ID said Jasmine, but I was looking at Daniel. I had the uncomfortable position of saying that because of ID I had to press the “female” button. Fortunately Daniel understood.
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Old 29th September 2021, 04:55 AM   #50
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Originally Posted by Cat Not Included View Post
Have the many, many, other ways that publicly funded schools restrict the speech of their students and teachers ever been considered a violation of the 1st Amendment?


Like, why not worry about whether or not telling off a teacher and being penalized is a violation of the 1st Amendment, which surely happens way, way, more than misgendering, before worrying about obscure stuff like that?
Indeed. The history and law around 1st amendment speech protections for state employees or in schools and so on is pretty complicated. Schools are employers and have interests to protect that case law has recognized allow for some limitation on totally free-wheeling speech, especially from teachers who are employed to do a certain job and have a duty, as agents of the state, to not engage in illegal discrimination.

I find it hard to imagine that a teacher would have a 1A right to routinely engage in illegally discriminatory behavior as described or to create a hostile environment for trans students. Speech conducted in the classroom as part of their official duties as a teacher is probably what can most be prescribed without being a 1A violation. The idea that a teacher has free reign to use the classroom as a soap box to spout whatever opinion they like, especially if it is derogatory towards students in their charge, is not one that has much legal backing.

All of this with the caveat that trans rights are still very tentatively recognized by US law, with the Bostock (gender identity is a subset of sex, therefore a protected class characteristic) decision still being very fresh and limited. All of this could easily change with future SCOTUS decisions.

An overview of this broader topic:

https://www.mtsu.edu/first-amendment...ts-of-teachers

The US dept. of education sent out this letter after the bostock decision putting schools on notice that the feds would consider gender-identity discrimination a title IX violation.

https://www2.ed.gov/about/offices/li...itleix-noi.pdf
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Old 29th September 2021, 06:33 AM   #51
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Originally Posted by arthwollipot View Post
Well that's very generous of you.

"They" is a singular pronoun.
From the wiki article:

Quote:
Singular they has been criticised since the mid-18th century by prescriptive commentators who considered it an error.
I didn't know that. Specifically, I didn't know that it was only in the 18th century that it started to be called an error, because my high school English teacher was one of those prescriptive commentators. He would mark it wrong on your paper if you ever said, "Everyone has their books." According to him, the proper English was "Everyone has his book."

But it turned out he was just using that new-fangled post 18th century uppity style.

I always thought it sounded weird to say "his" in that case, even aside from gender neutrality.
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Old 29th September 2021, 06:34 AM   #52
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Originally Posted by Cat Not Included View Post
Have the many, many, other ways that publicly funded schools restrict the speech of their students and teachers ever been considered a violation of the 1st Amendment?
See

https://en.wikipedia.org/wiki/Bethel...rict_v._Fraser
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Old 29th September 2021, 06:36 AM   #53
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Originally Posted by mumblethrax View Post
It's in the link before your first post in this thread.
I'm guessing you meant Bostock vs. Clayton County? (Just before my second post in this thread.)

No. Bostock didn't address the issues raised in the OP.
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Old 29th September 2021, 06:50 AM   #54
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Originally Posted by mumblethrax View Post
I don't think it's that hard. The courts have found that discrimination against employees on the basis of gender identity necessarily involves sex discrimination, and thus violates Title VII. It's hard to imagine how it would be otherwise under Title IX, given that the language is similar.
Looks like both Titles conflate sex and gender. Which is yet more evidence that gendered terminology like 'man' and 'woman' does not tend towards slipperiness, but rather tends to stick pretty close to biological sex.
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Old 29th September 2021, 06:52 AM   #55
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Originally Posted by theprestige View Post
Looks like both Titles conflate sex and gender. Which is yet more evidence that gendered terminology like 'man' and 'woman' does not tend towards slipperiness, but rather tends to stick pretty close to biological sex.
Bostock answers this question directly and makes it clear that gender identity/presentation, as a matter of law, are a subset of sex and therefore not lawful characteristics for discrimination.

I very much expect that this decision will be reversed in the near future, given the extreme right wing composition of the court, but as it stands now there is very little "slipperiness".
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Old 29th September 2021, 06:59 AM   #56
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Originally Posted by angrysoba View Post
But what about the first amendment????!?!?!??!?

This is my point. The first amendment is not relevant.

Whether you want to argue what the rules of the school are or ought to be, falling back on the first amendment is silly because it simply is not the basis for the decision.
It's not a system of formal logic.

Epithets intended to give offense are taboo. We stipulate that giving offense is not always protected by the right to free expression.

Factual accuracy for its own sake is not taboo. We can argue that epithets applied out of a sincere desire to be accurate should still be protected by the right to free expression, even if they give offense.

Hell, we already stipulate that expressions of falsehood should sometimes be protected speech, even if they give offense. If I stand on a streetcorner telling you you're a sinner doomed to hell by an vengeful god, you'd take offense. But it's still free speech. If I tell you that to me transwomen are not women, and I use pronouns accordingly, how is that any different?
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Old 29th September 2021, 07:15 AM   #57
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Originally Posted by theprestige View Post
It's not a system of formal logic.

Epithets intended to give offense are taboo. We stipulate that giving offense is not always protected by the right to free expression.

Factual accuracy for its own sake is not taboo. We can argue that epithets applied out of a sincere desire to be accurate should still be protected by the right to free expression, even if they give offense.

Hell, we already stipulate that expressions of falsehood should sometimes be protected speech, even if they give offense. If I stand on a streetcorner telling you you're a sinner doomed to hell by an vengeful god, you'd take offense. But it's still free speech. If I tell you that to me transwomen are not women, and I use pronouns accordingly, how is that any different?
Social norms. The hatred of the predominate religions in our societies has long been normalised in otherwards accepted, hatred stemming from other sources are often not normalised in a comparable manner. These social norms change over time.
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Old 29th September 2021, 07:16 AM   #58
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Originally Posted by Meadmaker View Post
Bostock didn't address the issues raised in the OP.
Not directly, but it's easy to extend the logic of Bostock to persistent misgendering as sexual harassment.
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Old 29th September 2021, 07:16 AM   #59
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Originally Posted by Meadmaker View Post
No. Bostock didn't address the issues raised in the OP.
The particulars are different, but Bostock is not overly concerned with the particulars. Instead it comes up with some pretty universal arguments--discrimination along the lines of sexual orientation or gender identity will always entail sex discrimination, since you are denying someone something that you would not deny them if their sex were different, and thus will violate anti-sex-discrimination statute.

It's easy to see how that reasoning would apply to a teacher who refused to use a student's preferred pronouns on the basis of their sex.

If we engage with the courts reasoning, then it is, like I said, not that hard to see how they'd probably rule. There's no reason to treat them like a black box when they're telling us how this works.
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Old 29th September 2021, 07:18 AM   #60
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Originally Posted by mumblethrax View Post
The particulars are different, but Bostock is not overly concerned with the particulars. Instead it comes up with some pretty universal arguments--discrimination along the lines of sexual orientation or gender identity will always entail sex discrimination, since you are denying someone something that you would not deny them if their sex were different, and thus will violate anti-sex-discrimination statute.

It's easy to see how that reasoning would apply to a teacher who refused to use a student's preferred pronouns on the basis of their sex.

If we engage with the courts reasoning, then it is, like I said, not that hard to see how they'd probably rule. There's no reason to treat them like a black box when they're telling us how this works.
To be fair, the courts might not rule that way if challenged. Not because the logic of Bostock isn't perfectly clear as you describe, but because the new, more right wing court may wish to rescind that ruling entirely.
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Old 29th September 2021, 07:22 AM   #61
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Originally Posted by SuburbanTurkey View Post
To be fair, the courts might not rule that way if challenged. Not because the logic of Bostock isn't perfectly clear as you describe, but because the new, more right wing court may wish to rescind that ruling entirely.
Yeah, that why I added the caveat "barring a change in the makeup of the court". Add a couple more mouthbreathers like Thomas or Alito, and things change.

They might rule differently even without a change in the court, but we have good abductive reasons to suppose they won't as things currently stand.
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Old 29th September 2021, 07:26 AM   #62
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Originally Posted by Darat View Post
Social norms. The hatred of the predominate religions in our societies has long been normalised in otherwards accepted, hatred stemming from other sources are often not normalised in a comparable manner. These social norms change over time.
My point is it's not hatred, except perhaps hatred of being compelled to engage in contrafactual speech.
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Old 29th September 2021, 07:26 AM   #63
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Originally Posted by mumblethrax View Post
Yeah, that why I added the caveat "barring a change in the makeup of the court". Add a couple more mouthbreathers like Thomas or Alito, and things change.

They might rule differently even without a change in the court, but we have good abductive reasons to suppose they won't as things currently stand.
Sure. Any lower court that is doing even close to a good-faith reading of the Bostock decision wouldn't be able to come to any other conclusion.
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Old 29th September 2021, 07:27 AM   #64
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Originally Posted by d4m10n View Post
Not directly, but it's easy to extend the logic of Bostock to persistent misgendering as sexual harassment.
Which raises the question: How could misgendering be sexual harassment?
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Old 29th September 2021, 07:30 AM   #65
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Originally Posted by theprestige View Post
Which raises the question: How could misgendering be sexual harassment?
Are you asking about the legal question of the OP, or a broader moral question?

The Bostock reasoning is extremely clear and is the same no matter how many times or different ways you ask.
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Old 29th September 2021, 07:31 AM   #66
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Originally Posted by theprestige View Post
Which raises the question: How could misgendering be sexual harassment?
Because it would be harassment based on sex discrimination.

A rough and ready description of sexual harassment in England and Wales:

https://www.citizensadvice.org.uk/la...al-harassment/

Quote:
....

Sexual harassment is unwanted behaviour of a sexual nature which:
  • violates your dignity
  • makes you feel intimidated, degraded or humiliated
  • creates a hostile or offensive environment

....
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Old 29th September 2021, 07:49 AM   #67
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Originally Posted by theprestige View Post
It's not a system of formal logic.

Epithets intended to give offense are taboo. We stipulate that giving offense is not always protected by the right to free expression.

Factual accuracy for its own sake is not taboo. We can argue that epithets applied out of a sincere desire to be accurate should still be protected by the right to free expression, even if they give offense.

Hell, we already stipulate that expressions of falsehood should sometimes be protected speech, even if they give offense. If I stand on a streetcorner telling you you're a sinner doomed to hell by an vengeful god, you'd take offense. But it's still free speech. If I tell you that to me transwomen are not women, and I use pronouns accordingly, how is that any different?
We’re talking about teachers in charge of students. It is YOU and the OP who seem to be taking the formal logic route: “CONSTITUTION NOT VIOLATED! CANNOT SEE PROBLEM!”

Teachers get all kinds of requests that are reasonable to treat students in a particular way. We are talking about that kind of behaviour which has literally nothing to do with the first amendment. It’s mind boggling to me if you seriously think this is a first amendment issue.
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Old 29th September 2021, 07:53 AM   #68
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Sexual discrimination, or gender discrimination?
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Old 29th September 2021, 07:54 AM   #69
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Although I guess the teacher could just be fired and if he or she asked the answer could be “because at will employment. LOL!” I mean ultimately does any claim about rights make any difference in the US when employees effectively have none. The only thing employees have to do is not be stupid enough to give a reason for firing anyone.
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"Evolution and Ethics" T.H. Huxley (1893)
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Old 29th September 2021, 08:01 AM   #70
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Originally Posted by theprestige View Post
Sexual discrimination, or gender discrimination?
According to the judgement quoted it is legally sexual discrimination.
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Old 29th September 2021, 08:10 AM   #71
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Originally Posted by theprestige View Post
Which raises the question: How could misgendering be sexual harassment?
see https://www.eeoc.gov/sexual-harassment
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Old 29th September 2021, 08:12 AM   #72
d4m10n
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Originally Posted by theprestige View Post
Which raises the question: How could misgendering be sexual harassment?
Because it is disparate treatment on the basis of sex.

MALE STUDENT: I'd like he/him pronouns please.

TEACHER: Okay, no problem.

FEMALE STUDENT: I'd like he/him pronouns please.

TEACHER: LOL wut
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Old 29th September 2021, 09:52 AM   #73
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Originally Posted by Olmstead View Post
Funny.

Language is a peculiar field in which ideas actually do trump reality. It's arbitrary that he refers to males and she refers to females. Offensiveness will also be arbitrary.
Arbitrary?

Are you using "arbitrary" in the sense of suggesting that the specific pattern of mouth noises wasn't something dictated by the laws of physics? Or are you using in the sense of "it has no meaning and any other mouth noise would work just as well"?
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Old 29th September 2021, 10:03 AM   #74
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Originally Posted by Warp12 View Post
Oh God. Just call these freaks whatever they want to be called, I suppose. But, can we somehow deal with the plural and singular issue? I feel like the only reason this is lingering is because nobody wants to be called an "it".
I think it's entirely inappropriate to refer to transgender people as "freaks". It is uncivil and dehumanizing.
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Old 29th September 2021, 10:16 AM   #75
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Originally Posted by Darat View Post
Because it would be harassment based on sex discrimination.

A rough and ready description of sexual harassment in England and Wales:

https://www.citizensadvice.org.uk/la...al-harassment/
Misgendering wouldn't fit that definition, as it is not "of a sexual nature".

Note that "of a sexual nature" is referring to the act of sex, as a verb, not the biology of the subject, as a noun.
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Old 29th September 2021, 12:33 PM   #76
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Originally Posted by ponderingturtle View Post
They are just "post-modernist influenced genderists " not any kind of actual people or anything.
People who advocate post-modernism and the idea of gender identity are people, and most of them are cisgender to boot.
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Old 29th September 2021, 05:08 PM   #77
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Originally Posted by d4m10n View Post
Not directly, but it's easy to extend the logic of Bostock to persistent misgendering as sexual harassment.
It's also easy to not do that.

The more I think about this, the more I think addressing the question from the op really requires more specific information. I've thought of several scenarios, some of which I think the courts would rule in favor of the misgendering person, and some against.
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Old 29th September 2021, 05:18 PM   #78
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Originally Posted by Meadmaker View Post
The more I think about this, the more I think addressing the question from the op really requires more specific information. I've thought of several scenarios, some of which I think the courts would rule in favor of the misgendering person, and some against.
Courts only rule on live "cases and controversies" or "claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs."

tl:dr — Whether or not the plaintiff happens to be well situated really does matter in practice.
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Old 29th September 2021, 07:30 PM   #79
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Are the choices he/she , him /her, or do the 50 shades come in to it?
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Old 29th September 2021, 07:46 PM   #80
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Originally Posted by casebro View Post
Are the choices he/she , him /her, or do the 50 shades come in to it?
Your intellectual superiors will decide if your pronouns conform to the new orthodoxy.
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