Landmark decision – Non-binary and gender fluid individuals are protected under the Equality Act 2010

Background

By way of background, Ms Taylor, who worked as an engineer for Jaguar, told her managers that she was transitioning from male to female. Subsequently, she was subjected to harassment and discrimination after attending work in female clothes.  Consequently, Ms Taylor brought claims of discrimination on the grounds of gender reassignment, harassment, victimisation as well as constructive dismissal after being subject to insults and jokes.

In response to these claims, Jaguar argued that Ms Taylor, who referred to herself as ‘gender fluid’ and ‘non-binary’ could not qualify for protection under the ground of gender reassignment.

The EqA states that ‘A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

At first glance, it appears that this provision indicates that medical treatment seems to be required in order to qualify for this protection.

However, the Tribunal upheld the Ms Taylor’s claim. The Tribunal stated that ‘gender…is a spectrum’. Regardless of how she referred to herself, she was on a ‘journey of transition’.

She did not need to undergo any medical treatment to qualify for this protection.

It was therefore unanimously agreed Ms Taylor had protected characteristic of gender reassignment. Therefore she was successful in her claims of discrimination, harassment, victimisation and constructive dismissal

Whilst this is a first instance tribunal decision only, this is a landmark decision. This decision demonstrates that those who identify as non-binary and/or gender fluid, are entitled to protection under the protected characteristic of gender reassignment.

Implications for employers and what employers can learn from this:

It is extremely important that employers take the time to educate themselves about those who identify as a different gender to the one that they have been assigned to at birth. Employers should ensure that the workplace is inclusive and tolerant to those who identify as a different gender.

From a practical point of view employers should consider doing the following:

• Ensure that diversity and inclusion training on different gender identities is provided on a regular basis.
• Ensure that any anti bullying policies address unacceptable behaviour towards individuals who identify as a different gender to the one that they have been assigned to at birth.
• Ensure that any forms that need completing allows employees to identify as their chosen gender identity.
• Ensure that the data that employers hold from their employees allows employees to change their gender identity if they require.
• Consider the use of a gender neutral bathroom.

If you would like any further information, please contact Sabrina Rahman  on 0114 228 3262 or sabrina.rahman@luptonfawcett.law or another member of the multi-award winning employment law team.