This week’s case focuses on the ever-topical issue of gender identity, and sheds light on a grey area of law that is bound to become increasingly important in the world of employment.

Facts of the Case

Rose Taylor is a former employee of Jaguar Land Rover. She had worked for the company for 20 years as an engineer. In 2017, she began identifying as gender fluid.

Being gender fluid means that an individual does not necessarily ascribe to either gender on a permanent basis. In other words, they may consider themselves to be female on one day, and male the next. The phrase is interchangeable with the term ‘non-binary’, meaning that an individual does not necessarily ascribe to either ‘binary’ of gender (male or female) on a permanent basis.

Ms. Taylor alleged that shortly after she began identifying as gender fluid, she became the subject of insults and abusive jokes from fellow colleagues and had difficulties in accessing the appropriate toilet facilities.

Because of this treatment, Ms. Taylor resigned in 2018 and brought a claim for direct discrimination and harassment against her former employer.

The Problem

The Equality Act 2010 clearly prohibits discrimination due to an employee having undergone a process of gender reassignment – it is one of several ‘protected characteristics’ that the act prohibits discrimination against (such as age or race).

The Act describes an individual to have undergone a process of gender reassignment if they have started or are going to start a process that changes their biological sex (for example surgery or hormone treatment).

The problem for the tribunal in Ms. Taylor’s case, was that she had not undergone any treatment to change her biological sex. Rather, she simply identified as being gender fluid. Therefore, the tribunal had to consider whether they could stretch the definition of gender reassignment to include a gender fluid person.

They answered in the affirmative. The full judgement is yet to be published, but it is likely that the Tribunal’s logic shall mirror the general societal shift towards a more liberal stance on gender.

Also noteworthy is that Ms. Taylor’s compensation was increased by 20% for her employer’s failure to comply with the ACAS Code of Practice with regards to her grievance about measures to assist with her transitioning, ultimately meaning Jaguar Land Rover paid out £180,000 in compensation.

The Takeaway Point

The winds of change inevitably affect the world of employment, and it would be wise for HR managers to consider if their diversity and inclusion training is up to speed with the societal developments that have occurred in the past few years.