Article / 23 Sep 2020

A gender-fluid employee is protected under the Equality Act

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Gateley Legal

Issue 

The Equality Act 2010 offers protection against discrimination and harassment in respect of a list of “protected characteristics” which includes gender reassignment. This is defined as reassignment of "sex" which has traditionally been regarded as a binary concept. In Ms R Taylor v Jaguar Land Rover Ltd the issue was whether this only offers protection to transgender people who identify as either male or female or whether it includes those who do not identify with this traditional binary view. 

Facts

Ms R Taylor had worked for the company for almost 20 years as an engineer, previously presenting as male. Taylor began to identify as gender-fluid in 2017 and started dressing in women’s clothing. It was alleged that this had resulted in insults and abusive jokes from colleagues. Taylor also complained that she had suffered difficulties using toilet facilities in the workplace. That led to Taylor resigning and subsequently bringing claims for constructive dismissal and discrimination.

Decision

The argument that the protected characteristic of gender reassignment did not include a gender-fluid / non-binary person was rejected. Gender was to be regarded as “a spectrum” rather than a binary choice. The Tribunal held that the claims succeeded. A remedy hearing was listed for 2 October and it was found that compensation would be uplifted by 20% because of the failure to comply with the ACAS Code in relation to their grievance about short term measures to assist with transitioning.

Key point

It has been described as a ‘landmark’ judgment as it establishes that complex gender identities may also fall within the definition of gender reassignment under the Equality Act 2010. Equality policies should make this clear. Also, assess whether other policies and procedures are unnecessarily gendered? Do they say "he" or "she"?  Where possible other terminology should be used. Similarly, on forms are workers asked to select their gender as either "Male" or "Female"?