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Gender fluid and non-binary workers afforded protection under the Equality Act

BY Erin Moncur
Employment Law & HR

In the first decision of its kind, the employment tribunal in Taylor v Jaguar Land Rover affirmed that non-binary and gender fluid people are protected from discrimination and harassment under the protected characteristic of ‘gender reassignment’.

The Claimant in this case was an engineer who identified as gender fluid/non-binary and had begun to dress in women’s clothing. Whilst working for Jaguar Land Rover, the Claimant (who prefers female pronouns) complained that she was subjected to insults and abusive jokes from colleagues as well as suffering difficulties in using the toilet facilities at the workplace and accessing managerial support.

Under Section 7 of the Equality Act 2010, a person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process for the purpose of reassigning their sex by changing physiological or other attributes of sex. Until this case, there had been uncertainty over whether this protection covered those who identify as gender fluid/non-binary, meaning their gender identity does not sit comfortably with either ‘man’ or ‘woman’.

The tribunal held that it was “beyond any doubt” that the Claimant’s gender identity was protected under the 2010 Act, with the judge agreeing with the Claimant’s comments that gender reassignment “concerns a personal journey and moving a gender identity away from birth sex”.

The tribunal upheld the claims of direct discrimination, harassment and victimisation on the grounds of gender reassignment and awarded the Claimant aggravated damages because of “the egregious way the Claimant was treated and because of the insensitive stance taken by the Respondent in defending the proceedings”.

Whilst this is an employment tribunal decision of first instance and is therefore not binding on other tribunals, this case helps to establish a wider scope of legal protections for those who identify outwith traditional binary genders. It also serves as a stark reminder to employers that they should be proactive in fostering an inclusive ethos within their organisations so that all members of the LGBTQ+ community feel understood and included at work.

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