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Gender Reassignment Discrimination: Non-Binary And Gender-Fluid Identities Are Protected

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The recent case of Taylor v Jaguar Land Rover raises some crucial issues concerning the rights of transgender employees, notably that non-binary and gender-fluid identities are protected by the Equality Act 2010. 

Below, we discuss the main issues of the case and outline ways that you can ensure that your business supports transgender equality.

Taylor v Jaguar Land Rover

This case concerned an employee with 20 years’ service at Jaguar Land Rover (JLR) who was subjected to offensive jokes and insults at work due to her gender reassignment.

She raised concerns with management about her unfair treatment.

Still, she received minimal support, and no real action was taken to protect her.

Therefore, she resigned and brought claims of gender reassignment discrimination and harassment and constructive unfair dismissal.

Her claims were successful, and she was awarded £180,000, which included aggravated damages due to the way she was treated by JLR and their insensitive approach to litigation.

The case covers four critical issues about gender reassignment discrimination, which are outlined below:

Non-binary and gender-fluid identities

The employment tribunal held that non-binary and gender-fluid identities are included under the protected characteristic of gender reassignment in section 7 Equality Act 2010.

The wording of the legislation refers to someone who is ‘proposing to undergo a process’ of gender reassignment.

This process does not need to be medical or surgical as it is a ‘personal process’, and gender reassignment is described as a spectrum.

Therefore, if a person moves away from their birth sex in any way, such as changing the way that they dress or act, they will be protected against gender reassignment discrimination.

The Importance of having policies in place

JLR tried to rely on the statutory defence that they had taken ‘all reasonable steps’ to prevent employees from discriminating against Ms Taylor, and therefore they were not liable.

JLR had some policies in place, such as an Equal Opportunities Policy, but they had not done anything to make employees aware of the policies or tried to implement them effectively.

The tribunal was shocked that a Company as prominent as JLR, with extensive access to resources, did not have effective support and training concerning gender reassignment and described it as a ‘wholesale failure’.

Toilet facilities

When Ms Taylor informed her line manager that she was transgender, she was told to use the disabled toilet.

This was a significant error by JLR’s HR department, as it implied that her protected characteristic of gender reassignment amounted to a disability since those with a disability should only use disabled toilets.

Transgender employees should be able to use whichever facilities match the gender they identify with, and they should not be expected to use separate facilities.

If it is practicable, gender-neutral toilets may make transgender employees feel more comfortable, but if single-occupancy toilets are available, transgender employees should not be forced to use them.

Grievance investigation

Ms Taylor raised grievances to management on several occasions about the detrimental treatment she was suffering, but management refused to investigate properly until she named the individuals involved.

The tribunal criticised this approach as Ms Taylor had valid reasons for not wanting to name names, and JLR should have taken a proactive approach by reminding the workforce of their zero-tolerance stance towards gender reassignment discrimination.

Best practice for supporting transgender equality

This is only a first-instance decision, so it is not a binding precedent.

However, as it is the first time the tribunal has considered non-binary and gender-fluid identities in relation to gender reassignment discrimination, it will most likely be applied in future cases.

To ensure that your business has adequate protection against gender reassignment discrimination and supports transgender equality, you can:

  • Review your current policies and procedures, such as your Equal Opportunities Policy and Dignity at Work Policy to check that transgender issues are included.
  • Ensure that these policies are implemented throughout your business and management have received training, so they have a full understanding on the relevant issues.
  • Demonstrate the commitment of senior management to creating an inclusive and supportive work environment.
  • Consider providing single-occupancy gender-neutral toilets that are available for any employee to use.

About The Author.

James Rowland

James Rowland

James is the Commercial Director at Neathouse Partners. He is responsible for all Account Management, Sales & Marketing within the company. Having gained a BSc in Psychology and further study for his post-grad Law degree, James embarked on his legal career in 2014. Since then, he has become an Associate Director at a national Employment Law boutique, studied for a Masters in Marketing, and as of 2018, been a Director at Neathouse Partners. Outside of the office, James is a keen cricketer, playing very badly (he calls himself a Batsman but averages single figures) in the Cheshire League for Nantwich CC. He also loves watching his childhood football team, Crewe Alexandra, and is an avid lover of cinema (his favourite film being Pulp Fiction). Feel free to connect with James on LinkedIn.
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