Trans employee rights in the workplace

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A recent ruling has extended protection against workplace discrimination to non-binary and gender fluid employees. Despite increasing awareness in this area, in our experience, there is still a gap in understanding of gender identities and trans rights, not just by employers but within large groups of society. Yet a failure to educate staff on this issue can lead to legal claims, financial exposure, reputational damage and a poor working culture. For these reasons and more, employers should be educating their managers and HR population on gender identity and trans rights, and what it means in terms of workplace support and updating policies.

In the first of our series of Law-Nows discussing trans employee rights we discuss this significant case, and the importance of language and terminology in relation to gender identity. In subsequent Law-Nows we will discuss the range of legal risks facing employers who do not engage with this issue and the practical steps employers can take.

Understanding terminology

In this Law-Now we use the terminology of “trans employees” which is an umbrella term covering transgender and non-binary individuals. The Equality Act 2010 defines a “transsexual” as a person that has the protected characteristic of gender reassignment. Transsexual is considered outdated terminology but is still used in case law because of its legislative basis.

The following terminology uses the definitions from the Acas Guidance: Gender reassignment discrimination: key points for the workplace

Non-binary employees: “Not identifying with the man or woman approach to gender. A non-binary person may say they are neither man nor woman, or may have some other sense of gender – for example, pan-gender, poly-gender, third gender.”

Gender identity: “How a person perceives their sense of gender, which may vary from the sex they were assigned at birth. It may be used by those who are undergoing gender reassignment, those who are not, and those who have a fluid gender identity (see below). For example, some may identify as a woman, a man, a combination of woman and man, or some other sense of gender.”

Gender-fluid individuals: “A wider range of gender expressions that may change from day to day. For example, a person may identify more as a woman on some days and identify more as a man on others, or may feel that neither gender describes them accurately.

Affirmed gender: “Trans organisations’ preferred term for gender identity after transition.”

The legal framework Employers should be aware that in addition to the protected characteristic of gender reassignment in the Equality Act 2010, additional protections exist for those employees who have transitioned and obtained a Gender Recognition Certificate (GRC) as provided by the Gender Recognition Act 2004. To recap the key legal issues to be aware of include:

  • Protection against discrimination - Under the Equality Act 2010, employees and workers proposing to undergo, undergoing or who have undergone a process to reassign their sex (referred to as “gender reassignment”) are protected from discrimination, harassment and victimisation. There is no requirement that in order 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;
  • Gender Recognition Certificates - 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. Failure by an employer to maintain confidentiality is an offence under Gender Recognition Act 2004 Act. Employers should not ask employees if they have a GRC. Acas explain that it is best practice to treat employees as if they do have a GRC.

Wider scope of protection

Taylor v Jaguar Land Rover Ltd breaks new ground by extending the definition of gender reassignment in the Equality Act 2010. 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 which made her work life extremely difficult.

Eventually Ms Taylor resigned. She brought claims for constructive dismissal, direct discrimination, victimisation and harassment. Her employer argued that the Equality Act only covers those who have transitioned or intend to transition from male to female or female to male. This argument was rejected and Ms 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 confirmed 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 the Equality Act 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 EAT.

Preventing this type of behaviour: the importance of culture

In the Taylor case the tribunal gave a a strong message about the importance of culture in the workplace. In the next of our series on supporting trans employees we consider discrimination claims employers may face in relation to gender identity and trans rights if they fail to get their culture right. We also highlight recent cases where an employee’s strongly held views on gender identity has clashed with their employer’s values. This is a very difficult area, but brings to the fore why it is so important for employers to be clear about what their culture and values are. In the third and final Law-Now in this series we will outline the practical steps that employers can take to avoid discrimination and harassment claims on the grounds of gender reassignment.