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Landmark decision determines 'non-binary/gender-fluid' as being a protected characteristic

View profile for Rebecca Topping
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A recent employment tribunal case is reported to have concluded that a worker at a Jaguar Land Rover plant, who identified as being gender-fluid/non-binary, fell within the definition of section 7 of the Equality Act 2010, in respect of gender reassignment.

In this particular case, it was reported that the employee, (who was an engineer), was subjected to insults and abusive ‘jokes’ at work, linked to their gender fluid/non-binary status. The employee subsequently brought claims of direct discrimination, harassment and victimisation against their employer on the grounds of gender reassignment.

Section 7 of the Equality Act defines gender reassignment as a protected characteristic. For an individual to bring a claim of discrimination under this particular protected characteristic, they need to be able to satisfy the following definition:

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 and the definitions of the additional protected characteristics under the Equality Act 2010 have therefore, to date, been considered to be unclear as to the protection afforded to those individuals who identify as gender-fluid/non-binary, from discriminatory conduct. However, the recent case of Ms R Taylor -v- Jaguar Land Rover Ltd very helpfully confirms that the definition, in the circumstances of this case extended to those within this demographic.

Ms Taylor’s representative argued that gender reassignment “concerns a personal journey and moving a gender identity away from birth sex”. It is understood that the tribunal held that it was “clear… that gender is a spectrum” and that it is “beyond any doubt” that the claimant fell within the definition of section 7 of the Equality Act 2010.

This potentially landmark decision means that other complex gender identities may fall within the definition of gender reassignment, under section 7 of the Equality Act 2010.  

We as a department have assisted many individuals in respect of discrimination claims relating to their gender reassignment status and it is encouraging  to see the employment tribunal’s judgment in this case.

If you feel that you have been discriminated against as a result of your gender reassignment status or any other protected characteristic, you may be able to bring a claim for discrimination under the terms of the Equality Act 2010. We may be able to help you with this and so please contact our specialist discrimination law team for further advice on 0161 696 6170