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Non-binary/gender fluid claimants | Feature

On 14 September 2020, the employment tribunal ruled that the gender reassignment protections afforded by section 7 of the Equality Act 2010 should be read to include those who identify as non-binary and/or gender fluid.

Facts

Ms Taylor brought her case in the employment tribunal against her former employer, Jaguar Land Rover Ltd ET/1304471/2018 claiming harassment, direct discrimination and victimisation on the grounds of gender reassignment. Ms Taylor claimed that whilst at Jaguar, she suffered difficulties in finding managerial support and using toilet facilities and was victim to insults and abusive jokes made by other employees.

Section 7 of the Equality Act 2010 (‘Equality Act’) states that a person benefits from the protection of the gender reassignment characteristic if they are ‘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. Jaguar’s argument was that Ms Taylor did not fall under the protection of the Equality Act, given that she identified as non-binary. The employment tribunal acknowledged that this was a novel area of law, before determining that Ms Taylor as a non-binary/gender-fluid person did fall within the definition of the characteristic.

What are non-binary gender identities?

According to Stonewall, the term ‘non-binary’ is an umbrella term for people whose gender identity doesn’t sit comfortably with either ‘man’ or ‘woman’. Non-binary identities are varied and can include people who identify with some aspects of binary identities, while others reject them entirely. The term is one of several gender identities which seek to establish the concept that gender is a spectrum. In this case, Ms Taylor argued that the Equality Act could be interpreted to cover more complex gender identities by referencing Hansard comments made by the Solicitor-General in 2009 when debating the original Equality Bill, in which the Solicitor-General referred to gender as a ‘spectrum’. It was stated that gender reassignment ‘concerns a personal journey and moving a gender identity away from birth sex.

Implications

As is often the case, the law has to play catch-up to society’s movement away from seeing gender as a purely binary construct. This is the first of what may be a new wave of judgments establishing a greater scope of protections afforded to those with complex gender identities, including non-binary and gender diverse individuals. As a result, whilst Tribunal decisions of first instance (such as this case) are not binding on other tribunals we can expect to see a rise in claims from those claimants who identify outside of traditional binary genders.

Employers should, therefore, be taking positive steps to ensure that all employees are working in an environment safe from discrimination and harassment regardless of gender identity as well as ensuring that its managers and employees have equality training which covers not only all of the protective characteristics but also the latest caselaw in relation to protected characteristics, including gender reassignment. The employment tribunal has issued a clear word of warning to employers to demonstrate care in how such identity issues are handled; in this case, Ms Taylor was awarded aggravated damages due to the ‘insensitive stance’ that the respondent took in the proceedings.

 

Lizzie Hardy is an associate at Eversheds Sutherland International LLP and committee member of the Law Society Lawyers with Disabilities Division


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