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Is there legal protection for non-binary and gender fluid employees?

Employment Matters e-update – July 2022

Overview

Arguments that ‘gender identity’ should be included as a protected characteristic alongside ‘gender reassignment’ have been advanced on the basis that those who are gender fluid or non-binary are not expressly covered by the current provisions in the Act.

At present, the Act does not recognise ‘gender identity’ as distinct from ‘gender reassignment’ as a protected characteristic. The UK Government’s position is that people who are gender fluid or non-binary would be able to rely on the protections against direct discrimination and harassment on the ground of either sex or gender reassignment since they are defined in such a way as to cover acts based on misperception.

This issue came before an employment tribunal in the 2020 case of Taylor v Jaguar Land Rover. The Employment Tribunal (ET) determined, for the first time, that protection of gender fluid and non-binary people fell under the ‘gender reassignment’ category in the Act.

Facts

Taylor worked for Jaguar Land Rover from the late 90s as an engineer.

In 2017, Taylor informed Jaguar Land over that she was transgender; transitioning from a male to female gender identity and self-identified as gender fluid. She informed Jaguar that she wished to dress in a male style on some days and a female style on other days. Taylor was stressed about the expectations others would place on her as a result. Taylor also informed Jaguar that she was not planning to undergo a surgical transition.

Taylor was subject to harassment related to gender reassignment by colleagues over a prolonged period of time and had repeatedly raised her concerns with her managers.

No action was taken to prevent the harassment from occurring and/or continuing by Jaguar. The response from Jaguar was instead largely dismissive.  In response to concerns about toilet facilities, Taylor was advised to use the disabled toilets.

Taylor was referred for an Occupational Health assessment because of the stress of her experiences. Taylor raised concerns a number of times regarding a lack of support within Jaguar for LGBTQ+ employees, both socially and in terms of the treatment she was experiencing.

Taylor brought claims of constructive dismissal and harassment, direct discrimination, victimisation under the protected characteristic of gender reassignment. Jaguar defended the claims and argued that being gender fluid and non-binary did not fall under the protected characteristic of gender reassignment.

Decision

In reaching its decision, the ET made reference to the idea that the Act intended to move away from “medicalising protected characteristics” and that the wording of the gender reassignment provision makes it clear that gender reassignment need not be a medical process.  Rather it was a spectrum of “moving away from birth sex” and that a person at any point on that spectrum would benefit from the protections in the Act whether they described themselves as “non-binary”, “gender fluid” or “transitioning””. Taylor, the ET said, was protected by the legislation because she was on that spectrum.

On the basis that Taylor had the protected characteristic of gender reassignment.

The ET was able to find that Taylor was harassed and had suffered direct discrimination because of her gender reassignment. The ET also upheld her victimisation and unfair constructive dismissal claims.

Impact

Whilst this decision was made by an ET and is therefore not binding on other Tribunals, it comes at a time when issues relating to gender identity and reassignment and the reform of the GRA are at the forefront of discussion.

It is understood that the ET, in considering the protected characteristic of gender reassignment applied, placed weight on the fact that Taylor identified as “non-binary transgender” and it is unclear whether a non-binary or gender fluid individual who does not also identify as transgender would be protected. In determining who would be protected by the gender reassignment characteristic, the ET made reference to individuals who were “on a journey”, however it is unclear what steps a person must take to fall within this categorisation.

It is important for employers to be aware of issues facing their employees and how they can best support them.

In this case, the ET was scathing of the organisation’s “wholesale failure” in regards to support for LGBTQ+ employees, both in terms of the lack of social groups available and in their response to substantive concerns raised by Taylor.

Jaguar had Dignity at Work and Equal Opportunities Policies in place, but none of the managers or HR staff knew they existed or could distinguish between them. This case helps to highlight the importance of keeping on top of workplace policies, and ensuring meaningful training and communication on those policies takes place.

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