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First instance decision; gender-fluid and non-binary workers protected under the Equality Act 2010

Ms R Taylor, a gender-fluid engineer, has won a claim for harassment, direct discrimination, victimisation and constructive unfair dismissal. 

Taylor, previously presenting as male, began to identify as gender fluid in 2017. Subsequently, Taylor became the target of harassing conduct and faced difficulties using the Jaguar Land Rover (“JLR”) toilet facilities.

Section 7 of the Equality Act 2010 (“EqA”) protects workers with the protected characteristic of ‘gender reassignment’. A worker will have this protection if they are proposing to undergo, are undergoing, or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex. Whilst is it understood that such protections apply to trans workers, it has remained unclear as to whether the same protection would apply to non-binary and gender-fluid workers.

Taylor’s Counsel argued that the government had referred to the gender ‘spectrum’ during its parliamentary debates of the EqA, and therefore the intention must have been for such workers to have protection under section 7 EqA.

JLR presented the argument that Taylor, as a gender fluid/non-binary worker did not fall under the protection of section 7 EqA.

Taylor’s argument succeeded and EJ Hughes found Taylor did enjoy the protected characteristic of gender reassignment. In finding in favour of Taylor, the Employment Tribunal correspondingly considered it appropriate that aggravated damages be awarded “because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings.

It is also expected remedy will include ACAS uplift of 20% and a recommendation the respondent take positive steps to avoid this situation arising again in the future.

Remedy has been listed for a separate hearing in October 2020.

Although only a first instance decision, the outcome is significant in that it demonstrates to employers the requirement to afford workers and employees on the gender spectrum the same protections and equality in the workplace as trans employees under section 7 EqA. Further, the scope of the ruling is likely to extend to individuals with other complex gender identities such as gender queer, agender or intersex.

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Posted on Oct 13th, 2020 by Anthony Heywood

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