Recent Court Ruling a Victory for Non-Binary and Gender-Fluid Workers

As an ally of the LGBT+ community, I welcomed the employment tribunal’s ‘mile-stone’ decision this week that non-binary and gender fluid people are protected from discrimination under the Equality Act 2010. Prior to this ruling, there was limited case law and commentary on this point and a potential lack of protection for the wider trans community, such as those identifying as gender fluid / non-binary.

As set out in the Government Equalities Office Guide, the term ‘non-binary’ is used to describe someone who does not subscribe to the customary binary approach to gender, and who may regard themselves as neither male nor female, or both male and female, or take another approach to gender entirely. Gender fluid people may have different gender identities at different times and may change their gender identity and presentation.

In a tribunal claim brought by R Taylor against Jaguar Land Rover, it was claimed that she suffered from harassment, direct discrimination and victimization because of her protected characteristics of gender reassignment and sexual orientation.

Ms.Taylor was an employee at Jaguar Land Rover for circa 20 years and had previously presented as male. Subsequently Ms.Taylor began identifying as gender fluid in 2017, and as a result of wearing women’s clothing was subjected to insults and abusive jokes from colleagues, and suffered difficulties with the use of the toilet and with the lack of managerial support.   

Jaguar Land Rover argued that discrimination protections did not apply in this case as the term ‘gender reassignment’ only applied to those in transition between binary genders of male and female. As Ms Taylor was not in the process of transition, it was argued that she was not protected by the Equality Act 2010.

The Tribunal rejected this argument, recognizing that people with more complex gender identities should still benefit from the protection of UK Equality laws. Ms Taylor’s counsel, Robin Maria White of Old Square Chambers reported that the Tribunal held it was “clear… that gender is a spectrum” and that it is “beyond any doubt” that the Claimant fell within the definition of section 7 of the Equality Act 2010.

As a matter of public policy it is perhaps understandable that the Tribunal refused to accept a narrow interpretation of the protection offered by the Equality Act 2010, particularly given that our understanding of gender and sexual identity has evolved and will continue to do so. It is a ruling which campaigners hope will extend to other complex gender identities.

Although Jaguar Land Rover have the ability to appeal this decision, the company has offered its apologies to Ms Taylor indicating their intention to respect the decision which has been made and implement improvements in this area.   

This case is an important victory for the LGBT+ community. It also flags the risks to employers of not recognizing and addressing the challenges that some colleagues can face whilst transitioning in the workplace.