Gender fluidity and discrimination

Ms R Taylor and Jaguar Land Rover Ltd: 2414408/2019)

In a unanimous decision, the Birmingham Employment Tribunal (the “Tribunal”) has confirmed that a gender fluid person falls within the scope of protection against discrimination because of gender reassignment under the Equality Act 2010. This decision clarifies previous uncertainty as to whether the Equality Act 2010 protects individuals that are gender fluid and non-binary.

Ms Taylor had previously presented as a male while working as an engineer at Jaguar Land Rover (“JLR”). In 2017, Ms Taylor began to identify as gender fluid and dress as a female. Subsequently Ms Taylor was insulted by colleagues and subjected to abusive jokes, experienced issues using work toilet facilities and was not supported by management. Ms Taylor resigned and brought claims for constructive dismissal and discrimination because of gender reassignment and sexual orientation. JLR attempted to argue that Ms Taylor did not have the protected characteristic of gender reassignment as it only applied to those in transition between the binary genders of male and female.  As Ms Taylor was not in the process of transition, JLR argued that she was not protected by the Equality Act 2010.

The Tribunal rejected this argument and found that Ms Taylor’s allegations of direct discrimination because of gender reassignment were well founded, as were her allegations of harassment and victimisation. The Tribunal’s decision recognises that gender is a spectrum and those with more complex gender identities should not be excluded from protection under the Equality Act 2010. Gender reassignment, defined as reassignment of sex, was traditionally regarded as a binary concept, but this decision interprets it as covering individuals who do not exclusively identify as either male or female, as well as individuals who have not undergone medical transition.

The Tribunal ordered aggravated damages because of the egregious way in which Ms Taylor was treated and because of the insensitive stance taken by JLR in the proceedings. The Tribunal also uplifted Ms Taylor’s compensation by 20% because of JLR’s failure to comply with the ACAS Code of Practice in relation to a grievance raised by Ms Taylor’s about short-term measures to assist her transitioning. The Tribunal recommended that JLR take positive steps to avoid the situation arising again. 

This important decision (albeit only at first instance) confirms the right of non-binary and gender fluid people to be protected from discrimination under the Equality Act 2010. It also highlights the importance of employers recognising, understanding and addressing the issues LGBTQ+ individuals face in the workplace and ensuring that they do not face discrimination.