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Non-binary / gender fluid individuals are protected under the Equality Act 2010

Posted on 18 September 2020

The Employment Tribunal ruled this week that the protected characteristic "gender reassignment" under section 7 of the Equality Act 2010 ("EqA") includes non-binary and gender fluid individuals.

Gender reassignment and the Equality Act 2010

A person has the protected characteristic of gender reassignment if they undergo (or propose to undergo) a "process or part of a process for the purpose of reassigning their sex by changing physiological or other attributes of sex".  

Historically, a "process" has been interpreted narrowly as medical intervention. However, the definition in the EqA does not necessitate a person to have undergone (or propose to undergo) any specific treatment or surgery. Therefore, a person who changes their "attributes of sex", for example by dressing differently or changing their pronouns, could fall within the definition of gender reassignment, providing it is for the purpose of "reassigning their sex".

The meaning of non-binary

Stonewall, the UK's largest LGBT+ charity, explains that 'non-binary' is an umbrella term for people whose gender does not fit comfortably with 'man', 'woman, 'male' or 'female'. It can include people who may identify with some aspects of binary identities or take another approach to gender entirely. Other terms, such as gender fluid, genderqueer and agender, also denote gender identities which do not fall within the binary framework of either male or female.

Up until now, the protection offered by the EqA to non-binary individuals was ambiguous and thought to be limited in scope. For example, the definition of gender reassignment would appear not to provide protection to non-binary people who do not take performative steps to change their "attributes of sex". It is also unclear what constitutes making a change to "attributes of sex", particularly for people who do not identify as either male or female. 

It is commonly acknowledged that there is a wide group of people who identify as non-binary, gender fluid, transgender, genderqueer or other terms who have not and do not intend to "reassign" their sex in the way the definition prescribes and would therefore seem to be unprotected by the EqA.

Taylor v Jaguar Land Rover 

The case concerned Ms Rose Taylor (the "Claimant"), an engineer and employee of Jaguar Land Rover (the "Respondent"), who changed the way she presented in 2017. The Claimant identified as non-binary / gender fluid and would usually dress in women's clothing. As a result, the Claimant was subjected to insults and abusive jokes at work, as well as issues with unsupportive management and use of the toilet facilities. The Claimant brought claims of harassment, direct discrimination and victimisation on the ground of gender reassignment.

The Respondent argued that because of the Claimant's non-binary / gender fluid identity, the Claimant did not fall within the definition of gender reassignment in the EqA.

The Employment Tribunal's decision

The Tribunal upheld the Claimant's claims of harassment, direct discrimination and victimisation. The Tribunal also found that the Claimant was constructively unfairly dismissed. While noting that it was a "novel point of law", the Tribunal held it was “clear… that gender is a spectrum” and that it is “beyond any doubt” that the Claimant fell within the definition of section 7 of the EqA.

Comment

It is clear that the law has not developed as quickly as society's understanding of the diverse spectrum of gender identities. This landmark case is the first to recognise the rights of non-binary and gender fluid individuals under the UK's equality laws.

It is likely that the judgment will be a catalyst for other rulings affording protection under the EqA to a diverse spectrum of gender identities. 

The judgment has reinforced the importance of employers taking meaningful steps to encourage an environment that equally recognises and values all staff and encourages authenticity. This now increasingly requires an understanding of the complexities of gender identities, and that "gender is a spectrum".

We will be addressing practical steps that employers can take to support non-binary employees in an upcoming article. We also recommend this useful guide for employers, published by the Scottish Trans Alliance, who were involved with the Taylor v Jaguar Land Rover case. The guide provides helpful information on steps employers can take to include and support non-binary people in the workplace.

Stonewall has produced a list of 10 ways to step up as an ally to non-binary people, which can be found here.

The judgment on Taylor v Jaguar Land Rover can be found here.

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