Protection for non-binary people against workplace discrimination

Protection against workplace discrimination for those identifying as non-binary

The Act provides protection to transgender people against discrimination, harassment, and victimisation in the workplace. Until the decision of the Employment Tribunal in Taylor v Jaguar Land Rover Limited it had often been presumed that this protection did not extend to non-binary people. This decision held, albeit only at the Employment Tribunal level, that the protection of transgender people extends to anyone undertaking the process of moving away from their birth sex, including non-binary and gender-fluid persons.

What does it mean to be non-binary?

LGBT charity Stonewall defines non-binary as “an umbrella term for people whose gender identity doesn’t sit comfortably with man or woman”.

Non-binary gender identities are not recognised under UK law.

At present, neither the UK nor Scottish government intend to extend legal recognition to non-binary people. However, in March 2021, the Scottish government created a new working group to “advise on proposed actions to improve, protect and promote equality for non-binary people”.

Gender reassignment as a protected characteristic

Gender reassignment is defined in the Act. This states: “A person has the protected characteristic of gender reassignment if the person 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.”

This definition makes clear that a person does not need to have sought medical advice or undertaken any medical processes to be protected under the Act.

Proposal to update the language of the Equality Act

In 2016 the Women and Equalities Committee recognised that the use of the term “transsexual” is “outdated and misleading”. The committee noted that use of this term had resulted in greater uncertainty as to whether non-binary persons were considered to have the protected characteristic of gender reassignment. It recommended that this protected characteristic in the Act should be amended to “gender identity”, stating that this would “make it significantly clearer that protection is afforded to anyone who might experience discrimination because of their gender identity”. No legislative steps have been taken to implement this recommendation.

Taylor v Jaguar Land Rover Limited

In this case, the Birmingham Employment Tribunal considered a claim of direct discrimination and harassment made by a non-binary person who was subjected to workplace bullying after they began dressing in women’s clothing.

The Tribunal considered the meaning of the phrase “proposing to undergo” in the Act, concluding that Parliament sought to move away from medicalising protected characteristics and clearly intended for “gender reassignment to be a spectrum moving away from birth sex”. The Tribunal held that it was “beyond any doubt that somebody in the situation of the Claimant was (and is) protected by the legislation because they are on that spectrum, and they are on a journey which will not be the same in any two cases”.

Accordingly, the Act’s protection against discrimination and harassment extended, under “gender reassignment” to non-binary people.

Being an employment tribunal decision, this case is not binding on other employment tribunals but it is a useful guide to how such claims may be decided. Since this decision was issued there have been no new reported cases on this topic, and therefore it is yet to be seen whether this approach will be accepted by other tribunals or in the courts.

Implications for employers

Employers may wish to review their policies and practices, and any diversity training provided to staff, and ensure that appropriate protection is extended to non-binary and gender fluid people. Remember that the Act prohibits direct and indirect discrimination, harassment, and victimisation.

This update contains general information only and does not constitute legal or other professional advice.

Kate Ross, Trainee Solicitor: 0141 221 8012 / Connect with Kate on LinkedIn

Douglas Strang, Senior Associate: / 0141 221 8012 / Connect with Douglas on LinkedIn