Gender identity and discrimination – more guidance

A recent ruling by Birmingham Employment Tribunal has been heralded as a “landmark judgment”, extending protection under the Equality Act 2010 to include individuals who identify as being gender fluid and non-binary, i.e. individuals who do not exclusively identify as being one particular sex.

The Claimant was an engineer with Jaguar Land Rover Ltd who identified as being gender fluid/non-binary.  The Claimant was subjected to abusive jokes and insults from colleagues, receiving poor support from management.  This led to her resignation, and subsequent claims of constructive unfair dismissal, direct discrimination, harassment and victimisation on the grounds of gender reassignment.

In its defence, Jaguar Land Rover Ltd sought to argue that being gender fluid/non-binary did not fall within the strict definition of “gender reassignment” under the Equality Act 2010.  However, the Employment Tribunal disagreed and found that the Claimant was protected under the Equality Act 2010.  The Claimant was successful in her claims, and aggravated damages were awarded against Jaguar due to the “egregious” way the Claimant was treated and the insensitive stance taken by the Company in defending the proceedings.

The outcome of this case is that the definition of “gender reassignment” has been extended to cover gender identities beyond the traditional male and female. As well as specifically providing protection to gender fluid/non-binary people, it is likely that this ruling will extend to other complex gender identities such as a-gender and gender queer.

This case therefore reminds us that gender identity is a complex issue which employers need to confront in order to ensure fair and equal treatment for all.  Given that many members of the workforce (including managers) will not have a true understanding of the different forms of gender identity, or the correct pronouns to use, we recommend that employers consider the following:

  • Raising awareness of the various genders and the importance of using the correct pronouns; this can be included in any equality and diversity training;
  • Introducing transgender and gender identity policies (or adding appropriate wording to existing equality and diversity polices) if these are not already in place;
  • Ensuring that managers understand the issues, and their obligations to support staff;
  • Treating any breach of the equality and diversity policy very seriously, and endeavouring to create an open and inclusive working environment.

 

If you would like further advice tailored to your particular circumstances, please contact us.