In a ground breaking judgement, the Birmingham Employment Tribunal has ruled that non-binary and gender fluid people are protected under the Equality Act.
The judgement, which is being described as a “milestone moment”, provides clarity over the term “gender reassignment”, a protected characteristic under the section 7 of the Equality Act 2010.
The Claimant, Ms Taylor, began identifying as gender fluid / non-binary in 2017. With almost 20 years of working as an engineer for Jaguar Land Rover, she suffered insults from colleagues and abusive jokes after dressing in women’s clothing, in addition to difficulties using toilet facilities and getting managerial support. She resigned from her position in 2018 and successfully argued before the Employment Tribunal that she had suffered from harassment, direct discrimination, constructive unfair dismissal and victimisation after Jaguar Land Rover later failed to permit her to retract her resignation.
The Employment Tribunal noted that the question of whether a gender fluid / non-binary person fell within section 7 of the Equality Act 2010 was a novel point of law and held that it was “clear… that gender is a spectrum” and that it is “beyond any doubt” that Ms Taylor fell within the definition of section 7.
The Employment Tribunal considered it appropriate to award Ms Taylor aggravated damages because of the “egregious way” she was treated and because of the “insensitive stance taken by the respondent in defending these proceedings”. Her compensation was also uplifted by 20% for Jaguar Land Rover’s “complete failure” to comply with the ACAS Code of Practice in relation to her grievance about short term measures to assist her transitioning.
Jaguar Land Rover have since publicly apologised to Ms Taylor for the experiences she had during her employment with them.
Comment
Section 7 of the Equality Act 2010 states that a person has the protected characteristic of gender reassignment if they are “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”. Although not binding on other tribunals, this landmark judgement allows scope for a range of complex gender identities to be brought within discrimination protection for gender reassignment.
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