Sex, Gender & Trans – the Equality Act is outdated
The Quality Act 2010
There are nine protected characteristics under the 2010 Equality Act which are age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity.
The Equality Act and Gender Identity
However, the Equality Act 2010 has been criticised for the inadequate protection it is perceived to offer to trans people. Gender identity can be understood to include how someone describes themselves, how they present, and how they feel. Different terms, descriptions, and labels exist for other gender identities e.g. 107 gender identities can be identified currently in 2023.
The language of the Equality Act 2010 around gender reassignment discrimination can now seem outdated and raises questions over exactly who the Act covers.
Some of these concerns have been addressed in Taylor v Jaguar Land Rover Limited, the Claimant identified as non-binary and gender fluid. The Claimant informed managers she was transitioning from male to female and wanted to be able to dress in female styles at work on some days but had no intention of undergoing any medical procedures. The Claimant was subjected to harassment and discrimination in the form of comments referring to her as wearing a Halloween costume and asking her if she was going to get her “bits chopped off”.
She resigned and brought claims for harassment, direct discrimination and victimisation on the grounds of gender reassignment. In response, the Respondent sought to argue that as a non-binary or gender fluid person, the Claimant was not entitled to the protection of 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 by changing physiological or other attributes of sex”.
Gender Reassignment - classification
The Tribunal had to address the question of at what point persons are "proposing to undergo" the process of gender reassignment. It was emphasised that it is not a requirement for someone to undergo medical treatment in order to be covered by the Act. 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’. Therefore, in the Tribunal’s view, made ‘it clear, and beyond dispute, that gender reassignment need never be a medical process’.
The Tribunal held that the word ‘process’ should be understood to be a ‘personal process’ entailing a ‘spectrum moving away from birth sex’ and that to be protected ‘a person could be at any point on that spectrum’. It also held 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 Tribunal awarded the Claimant damages of £180,000. This included aggravated damages for the way in which the Claimant was treated by her colleagues. Whilst this is a first instance decision (and therefore not binding) employers need to accept that there is a range of gender identities that their workers may identify as, and they should be sensitive to these different points of the spectrum.
Employers are required to create an inclusive and supportive workplace free from discrimination. In light of this judgment, employers should be therefore review internal policies to ensure they use inclusive language; updating absence procedures to include information on how this would apply where an employee is transitioning and providing training to employees on inclusive behaviour, e.g. how to use gender identifiers correctly, clarifying the sort of behaviours and language that will not be tolerated.
If you are an employer and concerned about making the right workplace changes to embrace gender identities and not sure how to go about ensuring equality in your workplace, please Contact Us.
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