9th November, 2020
Trans Rights and Protected Categories
Gender Reassignment discrimination protection extended to gender-fluid and gender non-binary individuals
One of the nine protected categories under the Equality Act 2010, Gender Reassignment, is often not well understood and a recent Employment Tribunal case has likely extended the definition further.
Under section 7 of the Act:
“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.”
To be protected, an individual only has to be proposing to undergo a transition, and that transition can be in respect of changing physiological or other attributes of sex. A trans-sexual or Trans person (i.e. an individual who is protected under the above definition of gender reassignment) does not need to be fully transitioning from male to female or female to male, they could be proposing as little as a change of hairstyle or wardrobe, or simply changing their name or title. Until the Equality Act came into force, protection from discrimination focussed on the concept of gender reassignment through a binary concept, i.e. the individual having either gone through or proposing to go through a formal gender reassignment process.
Essentially, the current legislation allows for protection from discrimination for anyone who self-identifies anywhere on the gender spectrum away from their birth sex.
The recent important decision in Taylor v Jaguar Land Rover promotes these principles still further and extends protection to those who identify as non-binary.
The Claimant, Ms Taylor, worked for the Respondent for nearly 20 years. She previously presented as a male but from 2017 identified as gender-fluid/non-binary and from then on usually dressed in women’s clothing. She claimed that she had been subjected to harassment, direct discrimination and victimisation at work because of the protected characteristic of gender reassignment.
In making a Judgment, the Employment Judge considered parliament’s intention when the Equality Act 2010 was going through the House of Commons by reviewing Hansard. After this review, the Judge’s findings were that gender is a spectrum and a movement along that spectrum is a “reassignment”. Therefore, it was held that gender-fluid and gender non-binary individuals are protected.
Ms Taylor’s claim was successful and she was awarded £180,000, a significant sum, including aggravated damages.
Top Tips for employers
This case highlights the need for employers to be aware of the range of gender identities and the high costs of getting this wrong. For employers, Equality Act protections are relevant for recruitment and employment, of employees, workers, trainees and (where relevant) contract workers and service users. Employers should periodically review their policies, procedures and training to ensure they are up to date and reflect equality protections. A standalone gender-reassignment policy is not essential, but Equal Opportunities policies should include reference to gender-reassignment.
In addition to reviewing policies, employers should:
- Be sensitive to different gender identities;
- Use terminology appropriately, preferably guided by the individual concerned;
- Train managers and staff on equal opportunities policies and increase awareness;
- Consider gender-neutral facilities;
- Communicate with a Trans employee to ensure they feel properly supported and to fully understand how they wish to be addressed.
If you have any questions or require support in respect of gender reassignment protections, or any other Equality Act principles, Aaron and Partners’ expert Employment Team would be happy to help.
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