On 14 September 2020, the employment tribunal dominated that the gender reassignment protections afforded by part 7 of the Equality Act 2010 needs to be learn to incorporate those that establish as non-binary and/or gender fluid.

Details

Ms Taylor introduced her case within the employment tribunal in opposition to her former employer, Jaguar Land Rover Ltd ET/1304471/2018 claiming harassment, direct discrimination and victimisation on the grounds of gender reassignment. Ms Taylor claimed that while at Jaguar, she suffered difficulties to find managerial assist and utilizing bathroom services and was sufferer to insults and abusive jokes made by different staff.

Part 7 of the Equality Act 2010 (‘Equality Act’) states that an individual advantages from the safety of the gender reassignment attribute if they’re ‘proposing to endure, is present process or has undergone a course of (or a part of a course of) for the aim of reassigning the particular person’s intercourse by altering physiological or different attributes of intercourse. Jaguar’s argument was that Ms Taylor didn’t fall below the safety of the Equality Act, on condition that she recognized as non-binary. The employment tribunal acknowledged that this was a novel space of regulation, earlier than figuring out that Ms Taylor as a non-binary/gender-fluid particular person did fall throughout the definition of the attribute.

What are non-binary gender identities?

In accordance with Stonewall, the time period ‘non-binary’ is an umbrella time period for folks whose gender id doesn’t sit comfortably with both ‘man’ or ‘girl’. Non-binary identities are diverse and might embody individuals who establish with some facets of binary identities, whereas others reject them totally. The time period is certainly one of a number of gender identities which search to determine the idea that gender is a spectrum. On this case, Ms Taylor argued that the Equality Act might be interpreted to cowl extra advanced gender identities by referencing Hansard feedback made by the Solicitor-Basic in 2009 when debating the unique Equality Invoice, through which the Solicitor-Basic referred to gender as a ‘spectrum’. It was said that gender reassignment ‘issues a private journey and shifting a gender id away from delivery intercourse.

Implications

As is usually the case, the regulation has to play catch-up to society’s motion away from seeing gender as a purely binary assemble. That is the primary of what could also be a brand new wave of judgments establishing a higher scope of protections afforded to these with advanced gender identities, together with non-binary and gender numerous people. Consequently, while Tribunal choices of first occasion (comparable to this case) will not be binding on different tribunals we are able to count on to see an increase in claims from these claimants who establish exterior of conventional binary genders.

Employers ought to, subsequently, be taking constructive steps to make sure that all staff are working in an setting secure from discrimination and harassment no matter gender id in addition to making certain that its managers and staff have equality coaching which covers not solely all the protecting traits but additionally the most recent caselaw in relation to protected traits, together with gender reassignment. The employment tribunal has issued a transparent phrase of warning to employers to show care in how such id points are dealt with; on this case, Ms Taylor was awarded aggravated damages because of the ‘insensitive stance’ that the respondent took within the proceedings.

 

Lizzie Hardy is an affiliate at Eversheds Sutherland Worldwide LLP and committee member of the Legislation Society Attorneys with Disabilities Division