Gender Reassignment Discrimination
The Birmingham Employment Tribunal in Taylor v Jaguar Land Rover Ltd was asked to decide at first instance whether a person needs to undergo (rather than merely intends to undergo) any medical treatment to have the protected characteristic of gender reassignment.
Employment lawyers have been watching this decision with interest as it may set in motion a change in the law to bring ‘non-binary’ or ‘gender-fluid’ individuals within the scope of the gender reassignment protected characteristic.
The relevant section of the Equality Act 2010 is section 165(1) which states:
“A person has the protected characteristic of gender reassignment if the person is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing the physiological or other attributes of sex.”
The circumstances of the case here were that in 2017 the Claimant had been working for the Defendant as an engineer and began the process of transitioning from male to female. After suffering harrassment and discrimination (including for attending work in female clothes) the Claimant resigned, then brought a claim on the basis of discrimination on grounds of gender reassignment, as well as constructive dismissal.
Despite colleagues having ridiculed the Claimant’s appearance and asking her whether she was going to “have her bits chopped off”, the Defendant argued that she was not within a protected characteristic as she described herself as both “non-binary” and “gender-fluid”
Inevitably, the tribunal held that the Claimant was protected as she was on a “journey” of transition which did not necessitate a medical process. The Claimant therefore succeeded in her claim.
Employers should now be reviewing current policies on gender identity at work to ensure they are inclusive, as well as ensuring that they are sensitive to employee’s preferred pronouns, provide training to staff on awareness and terminology and ensure provision is made where possible for gender neutral spaces such as toilets and changing facilities.
Posted on 12/11/2020 by Ortolan
