A triumph for gender fluidity? Expanding the scope of those protected under the Equality Act 2010

The Equality Act 2010 provides a legal framework against discrimination, victimisation and harassment, but which individuals does it serve to protect? Whilst part 2 of the statute sets out a list of protected characteristics, it’s failure to elucidate on the meaning of “gender reassignment” under section 7 has led to unresolved questions of what it might cover. Thankfully, this issue was addressed in the recent landmark judgement of Taylor v Jaguar Land Rovers where a unanimous employment tribunal held that section 7 of the Equality Act 2010 can cover employees who identify as non-binary and gender fluid. This judgement consequently marks a rapid progression for gender diversity, and acts as a cold warning to all employers who actively pathologise gender.

The case facts are as follows. The claimant, Rose Taylor, was a longstanding employee at Jaguar Land Rover (JLR) where she suffered years of harassment and discrimination in the workplace as a result of her decision to identify as gender fluid/non-binary in 2017. This included receiving abusive comments and being referred to as “it” by her work colleagues. Furthermore, when Ms Taylor reported these incidents to HR leadership, they responded by saying “well what else would you want them to call you?” And if the gravity of Ms Taylor’s situation is still unclear to you – a barrister working on the case said she had not seen facts as bad as these in her 25 years of serving at the bar.

Rose Taylor ultimately left JLR and rightly issued a claim against them for harassment, direct discrimination and victimisation. JLR argued that because Ms Taylor was gender fluid/non-binary and not transsexual, she did not fall under the protected characteristic of “gender reassignment” under section 7 of the Equality Act, meaning her claim would fail. Despite this, the employment tribunal found in favour of Ms Taylor and concluded that she was “beyond any doubt” covered by the protected characteristic of gender reassignment. They recognised the “egregious way the claimant was treated” and “the insensitive stance taken,” something which led the tribunal to award aggravated damages worth over £180,000.

Robin White, a transgender barrister who worked for Ms Taylor on the case, said “I couldn’t have hoped that it had gone as well as it did.” White made her own transition in 2011 and, at an event with the Exeter University Women and Law society, spoke of her own experiences with discrimination in previous jobs. She said her decision to train as an employment and discrimination barrister was largely led by the injustices she had faced in her own working life. It therefore seems fitting that White was working on such a significant and pivotal case as Taylor v JLR, for which she was awarded lawyer of the week in September by the lawyer magazine.

With regards to the case’s impact, it is without doubt that section 7 of the Equality Act will now cover those which it was thought not to previously. The tribunal’s decision to legally recognise gender fluid/ non-binary gender identities will likely alter societies acceptance of these minorities. It will also require employers to take steps to prevent discrimination against these groups, such as diversity training of staff at all levels or creating policies against discrimination.

But the battle for acceptance of those who identify as gender fluid and non-binary within our society is far from resolved. There is still no option for a gender-neutral passport, nor can a person use the HMRC tax system without registering as male or female. Perhaps most shockingly, there is still no recognition of non-binary genders under the Gender Recognition Act 2004 despite frequent calls for reform. Nonetheless, it can be assured that the landmark case of Taylor v JLR is a step in the right direction for the recognition and protection of gender fluid and non-binary identities.

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