Non-binary person protected from discrimination

An employment tribunal has ruled that gender reassignment discrimination includes individuals who identify as gender fluid and non-binary.

In 2017, Ms Taylor identified as gender fluid / non-binary, from which time she usually dressed in women’s clothing. She later brought claims of harassment, direct discrimination, and victimisation to a tribunal on the ground of gender reassignment. JLR argued that Ms Taylor, as gender fluid / non-binary, did not fall within the definition of gender reassignment under section 7 of the Equality Act 2010.

According to a report by Old Square Chambers: 'The Tribunal noted that the question of whether a gender fluid / non-binary person fell within section 7, was a novel point of law. During submissions there was reference to Hansard comments made during the Equality Bill parliamentary debates in 2009.' It was noted in that regard that the Solicitor-General had referred to a gender spectrum and that gender reassignment 'concerns a personal journey and moving a gender identity away from birth sex'.

The law firm, which represented the claimant, noted that the Tribunal held it was 'clear… that gender is a spectrum’ and that it was ‘beyond any doubt' that Ms Taylor fell within the definition of section 7. Judge Hughes concluded: 'This employment tribunal considers it 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.'

Speaking for Old Square Chambers, Robin White said: 'This is an important judgment, …recognising for the first time the rights of a small number of individuals with complex gender identities. Once again the courts have shown themselves willing to stand up for the rights of individuals in a manner which demands respect and admiration.'

The implication of this judgment is that other complex gender identities may also fall within the definition of gender reassignment under section 7 of the 2010 Act. At the remedy hearing for this case, the claimant was awarded £180,000 in compensation, an amount which emphasises the level of importance the Employment Tribunal has placed on cases of this nature.

Employers should bear in mind that this is an employment tribunal decision and, as such, is non-binding and does not represent a definitive change in legal stance. It is also currently unclear if this ruling will be appealed to the Employment Appeal Tribunal. That said, it does bring the cause of a number of individuals with gender complexities to the fore and we may therefore see an increase in demand for employers to acknowledge it.

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