Diversity policies should reflect the range of gender identities

7 Jan 2021 By Adam Penman

Adam Penman explores a recent ruling on gender discrimination in the workplace, and what it means for employers

In recent years, there has been greater recognition in the UK that gender is not limited to binary categories of male or female. There is now a much wider acceptance of a plethora of gender identities. However, greater sensitivity to gender norms has also generated confusion and resistance. For employers that fail to comprehensively consider gender, there is a risk of exposure, not just in costs for liability following litigation, but also costs to reputation and branding. 

Taylor v Jaguar Land Rover 

This case involved Ms R Taylor, an engineer employed by Jaguar Land Rover, who began to identify as gender fluid during the course of their employment from 2017. Consequently, they dressed in a male style on some days and a female style on others, although they retained their male name throughout the employment. From 2017, Taylor was subjected to harassment from colleagues, experienced challenges with using bathroom facilities and was not appropriately supported by their employer.

Section 7(1) of the Equality Act 2010 protects those who are “proposing to undergo, is undergoing or has undergone a process” or part of a process to reassign their sex by “changing physiological or other attributes of sex”. What qualifies as ‘a process’ and ‘attributes of sex’ are undefined. 

It has been clear for some time that the language of the Equality Act, in particular the words “or other attributes of sex”, dispenses with the need for the process of change to involve surgical or other medical intervention to qualify under section 7. However, an issue of uncertainty was whether section 7 required the ‘process’ to be a process of change between one of the binary genders to the other – ie from female to male or from male to female.

In a landmark decision, the employment tribunal determined that protection under section 7 extends to those who identify as non-binary and confirmed that there is no strict requirement to positively take steps to reassign one’s sex. The judgment recognises gender as a spectrum and finds that the ‘process’ of change is a journey along any part of this spectrum. 

The tribunal was asked to consider the statutory intention underlying section 7 and reference was made to the parliamentary debate regarding the intended effect of section 7, in which the solicitor general expressed it as being designed to capture a move “away from one’s birth sex, into a state of one’s choice…” rather than a change from one’s birth sex to a different binary gender.

Given the multitude of gender identities and the evolving nature of the gender debate, it would be logical to anticipate that the Taylor decision will mean that other gender identities, such as those who identify as pangender or agender, would be afforded the same protection. This is only an employment tribunal decision and so does not create a binding precedent. However, it is an exceptionally thoroughly reasoned decision, running to 59 pages.

Employer action points 

No matter an employer’s own view on gender issues, given the trajectory of developments, it’s clear from a legal risk perspective that cautious businesses should take proactive steps to mitigate risks associated with gender-related discrimination. 

Employers should revisit their equality and diversity policies to reflect the range of gender identities, use appropriate terminology in accordance with a worker’s own identity and facilitate training in the workplace to promote gender diversity awareness. 

Adam Penman is an employment lawyer at McGuireWoods

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