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Gender Fluid And Non-Binary Persons Are Protected Under The Equality Act 2010

Every so often a legal case is decided that brings the law up to date with changes that have been taking place in society for some time.  Roe v Wade (a woman’s right to abortion), Gillick v West Norfolk & Wisbech Area Health Authority (concerning a child’s right to decide on medical treatment), and the Belmarsh decision (regarding the detaining of foreign terrorist suspects without charge) – all of these cases came about as a result of the changing social attitudes of the time.  Now added to this list is Taylor v Jaguar Land Rover Ltd where a legal team, led by Sioban Calcott, successfully argued that non-binary and gender-fluid identities are protected under the Equality Act 2010.

Referred to Sioban by the Equality and Inclusion Partnership (EQuiP), the case’s decision has wide-ranging implications for employers and confirms that the protected characteristic of ‘gender reassignment’ applies to gender-fluid and non-binary persons.

The background to Taylor v Jaguar Land Rover Ltd

The Claimant, Ms Taylor, changed the way she presented in 2017.  She began wearing women’s clothes and subsequently had to endure insults and jokes made at her expense.  Ms Taylor also stated that she had trouble using toilet facilities and received little management support in regard to this problem.

The Court heard that Ms Taylor was subjected to harassment over a sustained and prolonged period.  Witnesses also accepted that she raised concerns about this on many occasions but that no action was taken to prevent the harassment from occurring and/or continuing. 

No evidence could be produced that any of the managers working for Jaguar Land Rover had been trained in the Dignity at Work procedure.  Some witnesses gave evidence that they had been trained on equal opportunities in the workplace many years ago.  And despite Ms Taylor’s efforts to engage HR, at the time of the hearing, the company had no Employee Resource Group (ERG) for LGBT+ employees.

Gender reassignment as a protected characteristic under the Equality Act 2010

Section 7(1) Equality Act 2010 provides:

“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.”

Until now, this section has been rather strictly interpreted as to applying only to people who make, or propose to make, a change from either male to female, or female to male.  However, the scope of the term ‘gender’ has significantly expanded since 2010.  ‘Transgender’ is an umbrella term that is used to cover several gender identities including non-binary, gender fluid, third gender, and gender non-conforming.  Ms Taylor identified with being ‘gender fluid’, that is someone whose gender varies over time and evidence submitted stated she was “not undergoing gender-reassignment because she was gender-fluid”.

Regarding direct discrimination, it is defined in section 13(1) of the EA10 as:

“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.

The Court determined that gender fluid and non-binary people were protected under section 7(1).  Ms Taylor’s Counsel directed the judges to a report produced in 2016 by the Women and Equality Select Committee titled “Transgender Equality ” which made 35 recommendations to tackle everyday transphobia.  The report recommended that:

“The protected characteristic in respect of trans people under the Equality Act should be amended to that of ‘gender identity”.  

The Government’s response said (amongst other things):

“Wider categories of transgender people such as cross-dressers, non-binary and gender-fluid people are protected if they experience less favourable treatment because of gender reassignment, for example, if they are incorrectly perceived as undergoing gender-reassignment when in fact they are not, or incorrectly perceived to be male or female… We will keep this under review.”

This submission illustrated to the Court that there was no intention on the Government’s part to exclude people who were not “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” from protection under section 7.

What employers need to do in light of the decision

The Court made clear by awarding aggravated damages (not usually granted) and via scathing comments that Jaguar Land Rover’s approach to Ms Taylor was unacceptable.  The judges’ comments to this end should put all employers on notice:

“We told the parties that we wanted to make it absolutely clear that we would regard very dimly any attempt by the Respondent to suggest that the failings in this case were the responsibility of the individual managers. That is simply not the case. Mr Poole, as we have observed, was completely out of his depth and looking for a lifeline, which was not there. That applies equally to Mr Morrison, Mr Glithero and Mr Bingham. They are employed as Engineers and we have no doubt they are experts in their chosen field. The Respondent did not give them the tools or support to deal with a situation such as this, which was completely outwith their area of expertise. The advice from HR was woeful, but they cannot be blamed for relying on it.

We thought it astounding that there was nothing in the way of proper support, training and enforcement on diversity and equality until the Claimant raised the issue in 2017, bearing in mind how long the legislation has been in force. We had not seen a wholesale failure in an organisation of this size in our collective experience as an industrial jury. This case came about as a result of the culture of the organisation. The culture is not aligned to the Respondent’s policies, agreements, or statements of intent. This is a lesson that has to be learnt at the highest level. It is a systemic failure and demonstrates that the Respondent values its employees’ ability to perform their key roles far more than their personal welfare and wellbeing. We were pleased that the Respondent sent some of its senior managers to hear our oral reasons, and we are hopeful that this will lead to meaningful change.”

Employers should take steps to be sensitive to employee’s gender identities and review their employment contracts and policies to ensure that the pronouns used are inclusive to all genders.  Such documentation should ideally refer to non-gendered “employees”, “staff” or some other gender-neutral term, such as ‘they’ or ‘their’.  It is important to consider providing a safe space for employees to identify their preferred pronoun.

Another consideration is to designate gender-neutral toilet and changing facilities if space allows, engaging in employee consultation where appropriate.

Finally, it is vital to have gender equality policies and training systems for all staff and management in place.  This will mitigate the risk of discrimination and/or victimisation occurring, which could lead to an expensive and stressful Employment Tribunal claim.

If you want support on any of the issues raised in this article, you can contact the LGBT Foundation on 0345 3 30 30 30 or visit their website