The Path to Protection
Prior to the Equality Act 2010 (“EqA”) those going through gender reassignment had limited protection from discrimination in employment law.
The current statutory framework for protection can be traced back to European Court of Justice (“ECJ”) decision in P v S and anor 1996 ICR 795, ECJ.
The facts of the matter were that P, a Claimant was assigned male at birth but was subsequently dismissed because of their intention to undergo gender reassignment surgery. In the first instance the Tribunal found that they had no claim available for discrimination. The Tribunal’s reasoning was that the Sex Discrimination Act provided protection from discrimination to males or females, and not those intending to change their sex. This is perhaps indicative of the outdated position of the then current UK legislation.
The matter was subsequently referred to the European Court of Justice (ECJ) who held that protection against discrimination was applicable to those undergoing a process of gender re-assignment. The court stressed the importance of discrimination on the basis of sex being a fundamental human right that a court was obliged to protect.
This decision led to the Sex Discrimination Act (“the Act”) being amended in 1999 to implement section 2A which added discrimination on the grounds of gender reassignment to the types of discrimination to which the act applied. However, Gender Reassignment was defined narrowly by the Act as “a process which is undertaken under medical supervision for the purpose of reassigning a person’s sex by changing physiological or other characteristics of sex, and includes any part of such a process”.
Section 7 EqA
When the EqA was introduced, the scope for protection was expanded and reinforced.
Section 7 defines the protected charact of gender reassignment as:
“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.”
The requirement for medical supervision was expressly removed therefore expanding the definition of those covered substantially
The definition removes the previous requirement of medical supervision being necessary to gain protection, but a notable point is precisely when a person will gain protection. This may be clear in some instances where a person has gone through a reassignment process, but less clear in others.
The starting point is to consider if a person is proposing to undergo a process of reassignment, which can be interpreted from relevant facts. For example, if a person declares their intention to an employer, they begin to change their dress or behaviour may be indicative that they have proposed to undergo reassignment and therefore gain protection under Section 7. The benefit of the wording of the legislation is that a degree of flexibility is available, and a broader scope of protection will apply.
Case Law & Future Considerations
The Employment Tribunal have had limited opportunity to date to test the wording of Section 7, this with the first instance decision in Taylor v Jaguar Land Rover Ltd Case No 1304471/18. The Claimant in this case was assigned male at birth, but declared to the Respondent that that she thought herself to be on a spectrum, which would involve a transition from male to female gender identity. The Claimant referred to herself as gender fluid, and that she had no intention to undergo surgical reassignment.
The Claimant brought a claim of harassment and discrimination under Section 7, on the basis of being instructed to use disabled toilets when at work and in relation to a series of derogatory comments made by colleagues. The Respondent argued that the claim was not covered by Section 7 as it advanced arguments of gender identity rather than gender reassignment.
The Tribunal found in favour of the Claimant, and held that protection under Section 7 applied. The reasoning behind this decision being that the intention of Section 7 was not to focus on medical intervention being a necessary prerequisite. The Claimant could be seen as proposing to undergo reassignment of their gender, which was sufficient to gain protection from discrimination.
It is notable that this decision was made in first instance, so is non-binding on future claims. It is an example, however, of the benefits of a flexible approach to Section 7. The decision in Taylor is a clear step forwards in comparison to the Tribunal decision in P v S, and it is a reflection of why Section 7 was introduced. It will be interesting to see how future Tribunals approach gender reassignment, and whether a flexible or narrower interpretation of Section 7 will be accepted particularly as understanding of gender expands including further consideration of protections for employees who consider themselves to fall between the previously accepted such as employees who are non-binary.