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Gender-Fluid and Non-Binary Workers Protected Under the Equality Act

on Friday, 25 September 2020.

In a judgement that breaks new ground, the Birmingham Employment Tribunal has found that protection of non-binary and gender-fluid people falls within the scope of gender reassignment under the Equality Act.

A Case of Discrimination

Ms Taylor, who had worked at Jaguar Land Rover as an engineer for more than 20 years, began identifying as gender-fluid in 2017. Ms Taylor suffered insults and abusive jokes from colleagues when she began dressing in women's clothes and also suffered difficulties using toilet facilities and a lack of support from management.

Ms Taylor successfully argued that she was constructively dismissed and suffered harassment, victimisation and discrimination because of gender reassignment and sexual orientation.

Under Section 7 of the Equality Act, 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."

There had previously been uncertainty in relation to whether Section 7 protected those who fell into the categories of non-binary or gender-fluid, however, the Tribunal in this case described gender as a spectrum and ruled that it is beyond doubt that Ms Taylor is protected by Section 7 as undergoing a process of gender reassignment, a personal journey by which an individual moves away from their birth sex.

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A Milestone Moment

Although this is a first instance decision (and therefore not binding on other Tribunals), this decision is being described as a milestone moment of which employers should take note. The decision establishes the clear intention to protect individuals with more complicated gender identities under the Equality Act.  

The Tribunal's full written reasoning for its decision is yet to be published; however the implication is that this decision paves the way for individuals with other complex gender identities to be protected from discrimination under the Equality Act.

For more information around gender identity protection, please contact Sian James in our Employment Law team on 07468 698 971, or complete the form below.

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