A non-binary approach is required

First published in Independent Practitioner Today in March 2021

A recent Employment Tribunal claim has shed light on the extent of the protection offered by the gender reassignment provisions in the Equality Act. This article looks at some of the failings of the employer in that case and highlights some of the things that your Practice may need to be thinking about when it comes to diversity and inclusion.

Who is protected from Gender Reassignment discrimination?

Section 7 of the Equality Act 2010 protects individuals against discrimination on the basis of gender reassignment but, until recently, the definition of gender reassignment had gone unchallenged.

S7(1) Equality Act 2010 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 was previously thought to protect individuals who had made, were making or were proposing to make a change from their natal sex to that of the opposite sex – i.e. a change from male to female or female to male. This widely held interpretation of the Equality Act was therefore a strict binary interpretation protecting individuals who either identified as exclusively male or exclusively female.

As awareness of gender identity has developed, it has become clear that a strictly binary approach is not inclusive of the full range of potential gender identifies. The LGBT Foundation describes non-binary as a term “used to describe people who feel their gender cannot be defined within the margins of gender binary. Instead, they understand their gender in a way that goes beyond simply identifying as either a man or woman.” Some non-binary individuals also identify with the umbrella term “transgender”, meaning identifying with a gender other than the one you were assigned at birth, but not all non-binary people feel that this definition applies to them.

Under the heading of non-binary, there are many nuanced gender identities including gender fluidity. For individuals who are gender fluid, their gender identity or gender expression is not fixed and may change over time. This means that gender fluid people may present in a mixed mode where they may adopt, what is traditionally considered to be, a more male or a more female presentation from day to day.

In recent years there has been mounting criticism for the terminology used in the Equality Act from organisations that support and campaign for LGBT+ rights such as Stonewall. This criticism centred around the use of the word “gender reassignment” which is usually used to describe someone’s transition from one binary gender to another and in circumstances where an individual is undergoing some form of medical intervention. This meant that many transgender and/or non-binary individuals believed they had been left unprotected by the Equality Act.

This position was supported by the recommendations made in the Women and Equalities Select Committee report on transgender equality. This report called upon the government to amend the Equality Act to protect gender identity rather than just gender reassignment requiring medical intervention.

Does the case of Taylor v JLR change this position?

Ms Taylor brought a claim against her former-employer JLR for, amongst other things, gender reassignment discrimination in the Employment Tribunal. Ms Taylor had notified JLR that whilst she had no intention of undergoing a surgical transition, she was transgender and identified as gender fluid, presenting in a mixed mode and sometimes dressing as male and sometimes as female.

JLR sought to rely on the widely held view set out above, that the law did not protect non-binary or gender fluid individuals as this was not encompassed in the definition of gender reassignment.

The Tribunal was therefore tasked with determining what Parliament had intended in relation to the gender reassignment provisions when it enacted the Equality Act. Despite the widely held view that non-binary individuals were not protected by the Act, the Tribunal found in favour of Ms Taylor, that gender is a spectrum and that the Equality Act protects anyone moving along that spectrum from discrimination without the need for medical intervention. It found that this includes non-binary, including gender fluid, employees.

On finding that Ms Taylor had been subject to gender reassignment discrimination, the Tribunal also awarded aggravated damages against JLR. Aggravated damages are rarely awarded and only in cases where the losing party is found to have acted aggressively, maliciously or oppressively.

As JLR have decided not to appeal this decision, and unless or until this position is challenged in a higher court, this finding will remain the current law in this area. This significantly widens the pool of individuals protected by the Act and it is important that all employers are aware how easy it is for this protection to be engaged.

What does this mean for your Practice?

All Practices should be aware that, under the current law, as soon as any employee makes it known that their gender identity is anything other than their natal sex, they are likely to be protected from any discrimination under the Equality Act. This could include an employee approaching any member of the Practice to state an intention to pursue gender reassignment or it could be as simple as an employee starting to dress or otherwise change personal attributes that indicate that their gender may be changing, fluid or non-binary. The employee’s ultimate “end destination” is irrelevant. In order to protect the Practice against risk, it is therefore prudent to presume that the Equality Act will apply in circumstances where there is any uncertainty about an individual’s gender identity and any policies dealing with gender reassignment discrimination should be amended accordingly to cover more complex gender identities.

Where an employee approaches a member of the Practice about their gender identity, it is important to listen and take the time to understand their position and any concerns they may have. A lot of damage can be caused by management and colleagues misusing terminology and/or downplaying genuine concerns. Where a Practice has an HR function, it is important that HR is properly trained and prepared to deal with gender identity matters. It is not the responsibility of a non-binary employee to educate their HR representatives. However, not all Practices will have a designated HR function. In these circumstances and/or in addition to HR, it is advisable to have a nominated equality and diversity representative and to seek advice from LGBT+ organisations, trade unions and legal advisers as appropriate.

One of the main criticisms of JLR was its failure to protect Ms Taylor from harassment from other employees and third parties. Ms Taylor had been unwilling to provide names of the offending parties meaning that JLR had felt unable to investigate the harassment or to sanction anyone for it.

It is always difficult for an employer to properly investigate allegations of misconduct where an employee is unwilling to provide names. If your Practice is faced with this, the employee should be encouraged to provide full details of the misconduct including naming the offending parties. The Practice should consider how it can support an employee in doing this and protect them against any potential detriment for providing this information. However, where an employee is simply unwilling to provide names, the Tribunal’s finding in Taylor v JLR shows that consideration may be given to what other steps an employer has taken to address the misconduct. In these circumstances the Practice should consider the wider culture of their Practice and what can be done to address any ongoing harassment. The Practice could, for example, issue a statement to all staff reminding them of the Practice’s expectations in relation to diversity and equality and warning them that any form of discrimination is unacceptable, that it will be taken extremely seriously and may result in disciplinary action up to dismissal. The Practice may also consider what support it can provide to the employee in relation to the harassment and whether further training or guidance is necessary for all staff.

Another area that is not straightforward when dealing with employees who are undergoing gender reassignment, or who identify as transgender or non-binary, is in relation to the appropriate toilets for them to use. JLR is a very large organisation with a number of large sites and it was therefore open to greater criticism about the provision of toilets than a smaller employer is likely to be. The potential facilities and options available to transgender or non-binary employees will therefore vary depending on the size of your Practice but it is important to show that proper consideration has been given to the practical and logistical barriers an employee may face and the feasible options for dealing with these. What is clear from the case law in this area is that it is not appropriate to instruct a transgender or non-binary employee to use the disabled toilet. Disabled toilets should rightly be reserved for disabled staff and/or patients. The key for any Practice facing this is to include the employee in the decision making process so that any approach can be agreed with them and sign-posted to other staff and/or patients as is necessary and in a sensitive and supportive way. It should not be left for a transgender or non-binary employee to worry about this decision alone.

JLR was heavily criticised by the Tribunal for a number of things that serve as best practice reminders to employers. These are useful learning points for all employers, including your Practice. As minimum best practice, employers should have regular training and policies in place that deal with diversity and equality issues. Equality and diversity and bullying and harassment policies should be reviewed to ensure that they are fit for purpose and are up to date with current understanding in relation to gender identity. However, it is not sufficient for there to be policies in place, unless all staff including Partners, Practice Managers and HR are aware of these policies and apply them. This applies to all policies and not just diversity and equality related policies. Practices should not fall into the trap of thinking that simply having a policy in place will absolve them of liability for their employees’ misconduct.

It is important that your Practice is seen to take diversity and equality issues as seriously as other policy issues. Where there is concern that members of the Practice are not promoting and supporting diversity and equality in the way they should be this should be dealt with as seriously as any other breach of policy would be.

If you would like any further advice or support for your Practice on any of the issues raised in this article, Hempsons employment team would be more than happy to assist.