Are non-binary people are protected under the Equality Act? An update

In February 2020 I wrote an article on non-binary and genderqueer (a precursor to the term non-binary). The article reviewed the current legislation in detail and the possible cracks in the legislation which did not factor in the whole gender spectrum, including non-binary individuals. A copy of the article is still available online and can be found here.

Following that article, I am very happy to report that an employment tribunal judgment has been published on the very topic. Whilst the details of the case at this time are scarce, I have reviewed the judgment and explored what it means for UK businesses.   

In Taylor v Jaguar Land Rover, an individual worked for Jaguar Land Rover as an engineer.  In 2017, they came out as a non-binary individual and began to wear women’s clothing. During this transitionary period, the Claimant was subject to a prolonged period of harassment, which resulted in insults and jokes at their expense, a lack of managerial support, and issues in being restricted from being able to use the correct toilet facilities for their gender identity. The Claimant raised a grievance, complaining about their mistreatment with a view to assisting and protecting them during the period of transition. This was not dealt with by Jaguar Land Rover. They resigned in response to the treatment and brought claims for constructive unfair dismissal, harassment, direct discrimination and victimisation on the ground of gender reassignment, in addition to several other claims.

At the Tribunal, the arguments related to the understanding of section 7 of the Equality Act 2010, which states as follows:

1. 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.
2. A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
3. In relation to the protected characteristic of gender reassignment—
   1. a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
   2. a reference to persons who share a protected characteristic is a reference to transsexual persons.

In order to be successful in their claim, the Claimant would need to show that non binary individuals are covered by the Equality Act, in particular the protected characteristic of gender reassignment. Because non binary relates to the reliance on reassigning sex, not gender, the wording of the Equality Act 2010 was unclear as to whether it included cases of non-binary individuals.

In its judgment dated 14 September 2020, the Tribunal upheld the claims for constructive unfair dismissal and harassment, victimisation and direct discrimination relating to the protected characteristic of gender reassignment. The Tribunal held it was “clear… that gender is a spectrum” and that it was “beyond any doubt” that the Claimant fell within the definition of section 7 of the Equality Act.

Whilst we are still awaiting sight of the official judgment from the remedy hearing, it is being reported in multiple news outlets that the Claimant was awarded compensation of £180,000. We will confirm this once we have seen the judgment.

With this judgment, the tribunal has shown that they are willing to move with the times and understand that people are far too complex to be categorised by a single characteristic. Nonetheless, the writing has been on the wall for a change. Prior to the Equality Act coming into force, Vera Baird, Solicitor General and Equality Bill Lead Minister, commented that “people’s identities are multi-faceted and complex” with a view to combining relevant protected characteristics. Particularly in relation to gender identities, it was stated during parliamentary debates that “concerns a personal journey and moving a gender identity away from birth sex”[1].

Of course, this is not the only means by which the law could develop. Famously, Christie Elan-Cane argued in the Court of Appeal that the current rules on passports only using ‘M’ and ‘F’, without a third option of ‘X’ for those who do not identify as male or female. This is not a new concept. Last year, Canada introduced gender-neutral passports, joining a host of other countries including Australia and Germany. Nepal has gone even further, with their Supreme Court dictating the third category be allowed for all official documents, including on bank accounts, property and university registers. If the UK follows the lead of these countries, it would follow that other legislation would follow suit in accounting for or recognising a non-binary gender identity and affording it protection.

What does this mean for you or your business?

It should be noted that this decision has only been made in the Employment Tribunal and so this is not binding on future cases. It is, however, useful guidance on the issues at hand and will hold some sway should this point be litigated on again. This matter may still be appealed by Jaguar Land Rover too, because this is an interpretation of law which moves past the wording of the Equality Act.

Moving forwards, and as noted by Robin White of Old Square Chambers, this judgment recognises the “the rights of a small number of individuals with complex gender identities” and could lead to further extension of section 7 to include “complex gender identities such as a-gender and gender queer”. The best advice that we can give therefore is to support your employees if they face the same issues as the claimant in this matter. Use the correct pronouns, stamp down on bullying or inappropriate comments and work with the employee to ensure that they feel safe and secure during what will be a difficult time in their lives. The risk of not doing so is receiving an expensive judgment against you, and poor PR along the way.

Recommended reading

Please read my article from February discussing non-binary individuals protection under the Equality Act here.

A link to the recent judgment in this case can be found here. The judgment itself is very limited as it was provided orally in the Employment Tribunal. 

[1] Comments from the Solicitor General in parliamentary records https://publications.parliament.uk/pa/cm200809/cmpublic/equality/090616/am/90616s04.htm

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.