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Can being gender fluid or non-binary be a protected characteristic under the Equality Act?

Associate Solicitor, Helen Scott

The Birmingham Employment Tribunal in the case of Taylor v Jaguar Land Rover Ltd has considered whether a Claimant’s identification as gender fluid and non-binary could amount to a protected characteristic and whether the Claimant’s discrimination claims against her employer, Jaguar Land Rover, should succeed.

Background

The Claimant was employed by the Respondent as an engineer. The Claimant had begun identifying as non-binary and gender-fluid in 2017, having previously identified as a man. The Claimant began usually dressing in women’s clothing and was subjected to harassment and verbal abuse from colleagues. The Claimant struggled to use toilet facilities at the Respondent’s workplace and the Respondent did not provide any managerial support for these issues.

The Claimant resigned and brought claims of constructive unfair dismissal, harassment, direct discrimination and victimisation against her  former employer to the Employment Tribunal.

The Law

Section 4 of the Equality Act 2010 sets out the list of protected characteristics, which includes gender reassignment. According to the Equality Act, gender reassignment can be considered as a protected characteristic where:

“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.”

This definition suggests that a person may need to have undergone, be undergoing, or at least be proposing to undergo, a process for the reassigning of their sex. It had to be determined whether the Claimant as a gender fluid or non-binary person fell within the definition.

Decision

The Tribunal concluded that the Claimant had the protected characteristic of gender reassignment and that her discrimination claims would succeed.

As part of its judgment, the parties agreed, by consent, to various steps as remedies, including that the Respondent appoint a Diversity and Inclusion Champion; that a report  be commissioned by a diversity organisation to investigate diversity and inclusion throughout the Respondent; and that an expert report should be published annually and made public.

The Tribunal also awarded aggravated damages as a result of the “egregious” way the Claimant was treated, in addition to an uplift to the Claimant’s compensation for a failure to follow the ACAS Code of Practice in relation to the Claimant’s grievance. The Claimant received a total of £180,000 in compensation.

Comment

Although at  Employment Tribunal level only, and therefore not strictly binding on other Courts or Tribunals, this case is an important decision and will serve as a reminder to employers to be aware of and sensitive to varying gender identities, and avoid a restrictive interpretation of the protected characteristic of “gender reassignment”. This area of law is one which continues to develop and employers should ensure that transgender discrimination and harassment is appropriately addressed in its equality and harassment policies, consider use of terminology and pronouns in employment documentation and the workplace, and provide adequate training on this sensitive area.

Written reasons have not yet been published setting out full details of the case and decision, and we will report any further key points at that time.

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