275: Equality Act 2010: protection for non-binary / gender fluid employees?

In today’s blog we look at the decision of Rose Taylor v Jaguar Land Rover Ltd where the Employment Tribunal considered their first gender reassignment case, as defined in the Equality Act 2010, in relation to a non-binary / gender fluid individual. Generally under UK Law, the Equality Act 2010 protects employees undergoing gender reassignment which is defined as the process of reassigning sex by changing physiological or other attributes of sex.

Ms Taylor had worked at Jaguar Land Rover for nearly 20 years as an engineer, presenting as a male, before she began identifying as gender fluid / non-binary in 2017, usually dressing as a woman. She alleged that she was subjected to insults and abusive jokes, had difficulties using the toilet facilities and had no managerial support. In 2018, Ms Taylor resigned and brought claims of harassment, direct discrimination and victimisation on the grounds of gender reassignment. The company defended the claims on the basis that people who are gender fluid / non-binary do not fall within the definition of gender reassignment under the Equality Act.

In order to understand the intentions of the definition, the Employment Tribunal considered the Parliamentary debate when the Equality Act was being introduced. At that time the Solicitor-General had referred to a ‘gender spectrum’ and had stressed that gender reassignment ‘concerns a personal journey and moving a gender identity away from birth sex.’ On this basis, the Tribunal ruled that it was beyond doubt that Ms Taylor came within the definition of gender reassignment. Her claims of harassment, direct discrimination and victimisation on the grounds of gender reassignment were upheld.

The level of compensation was left to be determined at a separate hearing, but the Tribunal‘s preliminary view was that it would be appropriate to award aggravated damages because of the egregious way Ms Taylor was treated and the insensitive stance taken by the employer during the proceedings. Recommendations may also be made to ensure the company takes positive steps to avoid this situation arising again.

The Tribunal has so far only given a detailed verbal decision and we await the full written judgment. Although only a first instance decision, which means that it does not set a precedent for other Tribunals, it is likely to be persuasive since there are no other cases on this point. Since 2015 there have been calls for the Equality Act provisions dealing with gender reassignment to be reformed in order to take account of the complex and evolving nature of the legal aspects of changing gender identity. No progress has been made to date, but this judgment may accelerate change.

In the meantime, employers are advised to check that equality policies and training reflect this wide definition of gender reassignment and include awareness of the practical issues connected to changing gender identity.