An employment tribunal has held that the protected characteristic of “gender reassignment” under the Equality Act 2010 extends to employees who are gender fluid/non-binary employees. However, whilst this is a novel point of law, as a tribunal-level decision, it is not binding on other tribunals.
A person has the protected characteristic of “gender reassignment” under the Equality Act 2010 if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex (section 7, Equality Act 2010).
Facts and decision
Ms. Taylor identified as gender fluid/non-binary. She was the subject of insults and abusive jokes after she started dressing in women’s clothing at work. She also had difficulties securing toilet facilities and was not supported by management.
The Tribunal found that “gender is a spectrum”. It noted that the question of whether someone who was gender fluid/non-binary had the protected characteristic of gender assignment was a novel point of law. However, it considered that it was “beyond doubt” that Ms. Taylor was protected. It awarded aggravated damages to Ms. Taylor based on the way she had been treated by her employer.
This is the first reported decision holding that gender reassignment covers gender fluid/non-binary individuals and may make it easier for people with other complex gender identities to argue that they are similarly protected. The tribunal has not yet published its full written reasons so it will be interesting to see its detailed analysis in due course. However, as a tribunal-level decision, it is not binding on other courts or tribunals.