Under section 7 of the Equality Act 2010 (“the Equality Act”), employees are protected from discrimination and harassment related to gender reassignment. A person who “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” will have the protected characteristic of gender reassignment.
As the recent Employment Tribunal case of Taylor v Jaguar Land Rover Ltd demonstrated, this definition extends to individuals who identify as gender-fluid or non-binary. The Tribunal clarified that there is no requirement for an individual to undergo medical intervention as gender reassignment is a personal, not medical, process.
The Facts
Ms Taylor was a longstanding employee of Jaguar Land Rover Limited (“Jaguar”). She previously presented as male but in 2017, she told her managers that she was transgender and thought herself to be part of a spectrum, transitioning from the male to the female gender identity. Ms Taylor described herself as “gender-fluid” but with no intention of undergoing surgery.
This led her to suffer harassment and discrimination over a sustained period of time after she started attending work dressed in women’s clothing. She eventually resigned in June 2018 and issued proceedings in the Employment Tribunal, claiming she was subjected to harassment and discrimination because of gender reassignment. The key issue here was whether she indeed had the protected characteristic of gender reassignment under the Equality Act.
Ms Taylor argued that, given the ambiguity of the legislation, it was necessary to look at the intention of Parliament to interpret the statute. Using extracts from Hansard (the official record of Parliamentary debates), she argued that Parliament recognised gender was a spectrum and made clear that there was no need for medical intervention for someone to be protected under the Equality Act. Further, Ms Taylor submitted that the extracts clearly demonstrated that someone who starts to dress, or behave, like someone who is changing their gender, or is living in an identity of an opposite sex, is protected.
Jaguar argued that Ms Taylor did not have the protected characteristic of gender reassignment because she was gender-fluid and non-binary, and therefore was not protected under the Equality Act.
Decision
The Employment Tribunal agreed that it was important to consider the intention of Parliament and relied on the Hansard extracts. The Tribunal held it was very clear that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum whether they described themselves as “non-binary” or “gender-fluid”.
Accordingly, the Tribunal concluded that Ms Taylor was protected by the legislation as she was “on a journey” of transition and that there was no requirement to undergo medical treatment to fit the definition.
Unsurprisingly, Ms Taylor succeeded in her claims of discrimination, harassment and constructive dismissal and Jaguar agreed to pay her £180,000 as compensation.
Comment
Although this judgment does not create a precedent as it is a first instance tribunal decision, employers would be wise to take note of it as it seems likely other Tribunals would reach the same conclusion.
In this case, Jaguar had the necessary policies in place but insufficient steps had been taken to bring these clearly to the attention of staff or to enforce them and HR advice was described as “woeful”. Employers should review their policies on gender identity and continue to educate themselves and their employees to ensure they promote an understanding and inclusive workplace.