Gender-fluid and non-binary workers protected under Equality Act, landmark ruling shows

Engineer subjected to insults and jokes from colleagues and lack of management support wins harassment, discrimination and constructive unfair dismissal claims

A gender-fluid Jaguar Land Rover (JLR) engineer who faced insults and jokes from their colleagues has won a claim for harassment, discrimination and constructive unfair dismissal. 

The landmark tribunal confirmed for the first time that protections under the Equality Act for those undergoing gender reassignment extended to non-binary and gender-fluid indiviuals, and found JLR’s argument to the contrary to be “totally without merit”. 

Eloise Stonborough, head of policy at LGBT+ charity Stonewall, said the tribunal ruling was a “milestone in recognising the rights of non-binary and gender-fluid people to be protected from discrimination under the Equality Act 2010”.

“Until now, it’s not been clear whether non-binary people were protected by anti-discrimination legislation, so this employment tribunal judgment will be key in supporting future judicial decisions,” said Stonborough. 

Ms R Taylor had worked for the company for almost 20 years as an engineer, previously presenting as male. Taylor began to identify as gender fluid in 2017 and started dressing in women’s clothing, which provoked insults and abusive jokes from colleagues. Taylor also suffered difficulties using toilet facilities.

Taylor told the employment tribunal they had little support from the firm’s management, which did not allow the retraction of their resignation from the company in 2018. 

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JLR argued that Taylor did not fall within the definition of gender reassignment under section 7 of the Equality Act because they were gender fluid/non-binary. 

But Taylor’s lawyer, barrister Robin Moira White, argued the government itself referred to a gender "spectrum" during parliamentary debates about the Act. And the Birmingham tribunal found in Taylor’s favour and that they had the “protected characteristic of gender reassignment”.

Employment Judge Hughes said that having heard submissions, it felt appropriate to award aggravated damages “because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings”. Hughes added that the tribunal may also make recommendations to JLR to alleviate Taylor’s injury to feelings by “ensuring the respondent takes positive steps to avoid this situation arising again. 

“The claimant’s compensation shall be uplifted by 20 per cent because of respondent’s complete failure to comply with the Acas Code of Practice in relation to the claimant’s grievance about short-term measures to assist her transitioning,” said Hughes. 

Kate Palmer, associate director of HR advisory at Peninsula, said that lack of understanding of LGBTQ+ individuals, their experiences and the difficulties they face in the workplace was “one of the biggest issues” facing employers currently. Palmer suggested the first step should be to increase awareness of the terminology used and what it means “so [employers] have a starting point in being able to assess their practices for potential improvement”.

“Treating all the workforce as individuals should be high on the agenda, so each situation should be addressed individually and decisions should be made with the inclusion of the particular employee,” said Palmer. “Employers could consider physical adjustments including gender-neutral toilet facilities and uniforms, and be careful to discuss with employees any changes to personnel records, with a reminder that disclosure of their history will be controlled by them.”

Lui Asquith, legal and policy director at Mermaids, a charity supporting young gender-variant and transgender individuals, said this was an “important judgment” and would reassure “all current and aspiring non-binary professionals that our courts will insist on them being respected and protected in the workplace”.

“Decisions like this, even if only a first instance, are a hugely positively step forward for the recognition of non-binary people within wider society,” said Asquith. 

Stonborough added the tribunal upheld the important principle that gender was “a spectrum” and said this ruling meant even those who had not undergone medical transition were still protected by the Equality Act.  

“This creates the potential for even more non-binary and gender-diverse people to be protected from harassment and discrimination in all areas of their lives, which is a vital step towards creating a world where all LGBT+ people can thrive as their authentic selves,” said Stonborough. 

Responding to People Management’s request for comment, Dave Williams, executive director of HR at JLR, apologised to Taylor on behalf of the company and said it would continue to “strive to improve in this area”. He said JLR “respected the outcome of the case” and would continue to work with leaders and employee-led diversity networks to foster a “gender-balanced culture”. 

A hearing to consider how much compensation Taylor should be awarded has been set for next month. Taylor could not be reached for comment.