Despite increasing awareness in this area, there is still a gap in understanding gender identities and trans rights, not just by employers but within society. Yet a failure to educate staff on this issue can lead to legal claims, financial exposure, reputational damage and a poor working culture.
Employers should be educating their managers and HR teams on gender identity and trans rights, and what it means in terms of workplace support and updating policies.
Businesses should be aware that in addition to the protected characteristic of gender reassignment in the Equality Act 2010, additional protection exists for those employees who have transitioned and obtained a gender recognition certificate (GRC). The key legal issues to be aware of include:
- Protection against discrimination: under the equality regulation, employees and workers proposing to undergo, undergoing or who have undergone a process to reassign their sex are protected from discrimination, harassment and victimisation. There is no requirement that to be protected under the Equality Act the trans person must have undergone medical treatment relating to their gender. Now, as a result of the Taylor case (discussed below), this protection is likely to extend to gender-fluid and non-binary employees.
- GRCs: once an individual has been granted a GRC, they will be issued with a birth certificate in their affirmed gender and protected through law against disclosure of information relating to their gender history. Employers should not ask employees if they have a GRC.
Wider scope of protection
Taylor v Jaguar Land Rover breaks new ground by extending the definition of gender reassignment in the Equality Act. Ms Taylor had worked as an engineer for almost 20 years and had presented as male. In 2017, she began to identify as gender fluid or non-binary and talked to her employers about this. When she came to work, she wore female clothing on some days. She claimed she received limited support from her employer, and experienced jokes and insults from her colleagues at her expense.
Eventually Taylor resigned. She brought claims for constructive dismissal, direct discrimination, victimisation and harassment. Her employer argued that the legislation only covers those who have transitioned or intend to transition from male to female or female to male. This argument was rejected and Taylor’s claims for gender reassignment discrimination, harassment and victimisation were successful. The tribunal also upheld her claim for constructive dismissal and awarded £180,000 in damages.
This case confirms for the first time that gender-fluid and non-binary individuals are protected under the Equality Act. Gender identity is a spectrum, and if this case is followed then regulation protects all those who do not identify as cisgender (cisgender is a term for people whose gender identity matches their sex assigned at birth). This includes, for example, non-binary employees who do not identify as either male or female, and gender-fluid individuals who may present as different genders from one day to the next.
A note of caution here: the case was heard before an employment tribunal, which is not considered binding on other tribunals. However, there does seem to be a strong view that the case was correctly decided and likely to be upheld by the Employment Appeal Tribunal.
In the Taylor case the tribunal gave a strong message about the importance of culture in the workplace. This is a difficult area but brings to the fore why it is so important for employers to be clear about what their culture and values are.
Gillian MacLellan is an employment partner at CMS