Are the gender reassignment provisions of the Equality Act 2010 fit for purpose?
Taylor v Jaguar Land Rover Limited
She resigned and brought claims for harassment, direct discrimination and victimisation on the grounds of gender reassignment. In response, Jaguar sought to argue that as a non-binary or gender fluid person, Ms Taylor was not entitled to the protection of the gender reassignment provisions of the Equality Act 2010.
What is a “process” under the gender reassignment provisions of the Equality Act 2010?
The Tribunal had to address the question of at what point persons are "proposing to undergo" the process of gender reassignment. Importantly, it was emphasised that commencing a medical process was not required to fall within the protected characteristic. The Tribunal looked at the intention of Parliament in recasting gender reassignment protection under the Equality Act 2010 and the fact that it omitted the requirement (contained in the Sex Discrimination Act 1975) for a process to be undertaken under ‘medical supervision’. This, in the Tribunal’s view, made ‘it clear, and beyond dispute, that gender reassignment need never be a medical process’.
‘A personal move away from one’s birth sex, into a state of one’s choice’
The topic of facilities has already attracted a lot of attention in the context of gender re-assignment discussions and the Tribunal was clear that telling a transitioning person to use disabled toilets is, at the very least, potentially offensive because it suggests their protected characteristic equates to a disability.
As this is a first instance decision, it is not binding on other tribunals. However, given the long-standing concerns over the scope of the Equality Act 2010 protection and the robust reasoning in the case, it stands as the high-water mark for future litigation.
A cautionary tale for employers
What actions should employers be considering?
- Reviewing their internal policies to ensure they are using inclusive language.
- Updating their absence procedure to include information on how it would work where an employee is transitioning.
- Providing training to their employees on inclusive behaviour, such as how to use gender identifiers correctly, and the sort of behaviours and language that will not be tolerated.
- Increasing awareness at all levels of the company of the range of gender identities that exist.
- Engaging with employees and establishing diversity committees to ensure that that they are included in the conversation about what action the employer should be taking.
Inclusion both in and out of the workplace
- Increasingly it is becoming common for individuals to state their gender pronoun at the end of their email signature.
- An increase in gender neutral facilities in restaurants and public spaces.
The responsibility is on all persons to engage in inclusive behaviours and actions like these increase awareness and show respect and support for transgender persons by making these behaviours part of the norm.