15 diciembre 2020 EmploymentLinks

Are the gender reassignment provisions of the Equality Act 2010 fit for purpose?

The Equality Act 2010 has been criticised for the inadequate protection it is perceived to offer to trans people. The gender reassignment discrimination provisions have created uncertainty as to their scope: doubts persist as to whether protection applies only to those undergoing medical gender reassignment and the provisions have been thought to fall short of protecting those who identify as non-binary. These concerns have been addressed in a recent case in the Birmingham Employment Tribunal.
 
Taylor v Jaguar Land Rover Limited
In Taylor v Jaguar Land Rover Limited, the Claimant identified as non-binary and gender fluid. She had told her managers that she was transitioning from male to female and wanted to be able to dress in female styles some days at work but had no intention of undergoing medical procedures. The Claimant was subjected to bullying, offensive remarks and insults. She was also, at times, asked by her managers to use the disabled toilet.

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?
Under the Equality Act 2010, a person has the protected characteristic of gender reassignment "if the person is proposing to undergo, is undergoing or has undergone a process for the purpose of reassigning the person's sex".

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’
Relying again on Parliamentary discussion at the time of the introduction of the Equality Act 2010, the Tribunal held that the word ‘process’ should be understood to be a ‘personal process’  entailing a ‘spectrum of moving away from one’s birth sex’ and that to be protected ‘a person could be at any point on that spectrum’. It held that this would encompass persons who identified as non-binary, gender fluid or transitioning. The effect of this decision is to provide protection for gender fluid and non-binary persons against discrimination in the workplace. 

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
The Tribunal awarded Ms Taylor damages of £180,000. This included aggravated damages for the way in which Ms Taylor was treated by her colleagues. But perhaps more significantly for employers, the case has received widespread publicity. Employers should reflect on their approach not only to trans people but to diversity and inclusion more generally. Failure to treat trans people with dignity will have repercussions for an employer’s reputation.  
 
What actions should employers be considering?
Employers are required to create an inclusive and supportive workplace free from discrimination. In light of this judgment, employers should be:

  • 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
We have already seen changes taking place, 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.