In Rose Taylor v Jaguar Land Rover Ltd, an employment tribunal has held that people who are non-binary/gender fluid fall within the definition of the protected characteristic of gender reassignment under section 7 of the Equality Act 2010 (‘EqA’).

This decision is the first of its kind and is being widely heralded as a “milestone moment” in relation to the rights and protections of trans people and those with other more complex gender identities.

Facts

The claimant, Ms Taylor, had worked at Jaguar Land Rover for almost 20 years as an engineer and had previously presented as male, before she began identifying as gender fluid/non-binary in 2017. Since that time, Ms Taylor alleged that she had been subjected to insults and abusive jokes at work, suffered difficulties with the use of toilet facilities and had no managerial support. Ms Taylor subsequently resigned in 2018 and brought claims of harassment, direct discrimination and victimisation on the grounds of gender reassignment. Jaguar Land Rover defended the claims on the basis that Ms Taylor did not have a protected characteristic as people who are gender fluid /non-binary, do not fall within the definition of gender reassignment under section 7 of the EqA.

Section 7 provides:

 “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.”

It goes on to state:

 “A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.”

The Tribunal’s decision

Whilst the written judgment is still awaited, in its very detailed oral decision, the Tribunal noted that the case raised a novel point of law. During the hearing of the case, reference was made to the discussions that took place in Parliament whilst debating the introduction of the Equality Act, in order to understand the purpose of the provisions. It was noted that the Solicitor-General at the time referred to a gender “spectrum” and that gender reassignment “concerns a personal journey and moving a gender identity away from birth sex”.

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 gender reassignment under section 7 of the EqA. The Tribunal went on to uphold Ms Taylor’s claims of harassment, direct discrimination and victimisation on the grounds of gender reassignment.

The Tribunal will determine the appropriate level of compensation in this case at a separate hearing in early October. However, the Tribunal noted that its preliminary view was that it will be “appropriate to award aggravated damages in this case because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings.” The Tribunal also noted that it was minded to consider making recommendations to alleviate the claimant’s injury to feelings by ensuring that Jaguar Land Rover takes positive steps to avoid this situation arising again.

What to take away

Gender identity is a wide ranging and complex issue that is evolving rapidly and the law is developing with it. Section 7 of the EqA has been the subject of proposals for reform since 2015 but to date no progress has been made.

Although this is a first instance decision (which means that it does not set a precedent that other Employment Tribunals must follow), it is likely to be persuasive and lead to other Tribunals upholding similar claims as:-

• gender reassignment cases are rare;
• there is no other case on the point; and,
• it paves the way for Tribunals to find that other complex gender identities fall within the definition of gender reassignment under section 7 of the EqA as it stands (which, so far, have gone unrecognised) where individuals propose to undergo a process of moving their gender identity away from their birth gender.

This decision is potentially significant not only to employers but also to the providers and commissioners of services in all sectors as the EqA does not only apply in the employment context (to applicants, trainees and workers), but also to service users.

Whilst we await the detailed written judgment, any updated guidance from the Equality and Human Rights Commission and further debate upon the changes to the law that may be required as a result, we recommend that all employers and service providers:

• Review all policies and procedures to ensure that they are compliant with the wider definition of gender reassignment in Section 7 of the Equality Act 2010;
• Consider implementing a stand-alone gender identity policy to ensure clarity on the inclusion, protection and support of those with complex gender identities;
• Provide gender identity awareness training for all staff; and
• Consult with staff to consider what practical steps can / should be taken to encourage more inclusive ways of working – for example, the use of toilets / shared spaces, access to services, preferred pronouns, dress codes.

How Capsticks can help

Capsticks has significant experience of supporting employers in relation to equality, diversity and inclusion matters, including drafting and reviewing policies and procedures, delivering bespoke training, and advising on actual or potential discrimination claims. For further information on how we might assist your organisation, please contact Sian Bond, Alistair Kernohan or Chloe Edwards.