HR talking point: Are non-binary employees protected from discrimination at work?
Author: Susie Munro
The language of the Equality Act 2010 around gender reassignment discrimination can now seem outdated and raises questions over exactly who the Act covers. XpertHR senior employment law editor Susie Munro looks at the extent of the protection provided to employees who identify as non-binary or gender fluid.
What does it mean to be non-binary or gender fluid?
People who are non-binary identify as being outside the gender binary - ie their gender identity is not exclusively male or female.
The experience of non-binary people is not uniform. Some non-binary people describe their gender identity as being somewhere between male and female, others as a gender other than male or female. Some people define themselves as gender fluid, meaning that their gender identity moves between two or more genders.
The wide range of differing identities raises potential issues around whether non-binary and gender fluid people are covered by the definitions under the "gender reassignment" provisions of the Equality Act 2010.
What does the Equality Act 2010 say?
The Equality Act 2010 protects people from discrimination on the ground of "gender reassignment". This covers someone who is "proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex".
The Act refers to someone with this protected characteristic as "transsexual" - a word that is now often regarded as being outdated and not reflecting the experience of trans people.
The Act does not mention non-binary or other gender identities.
Do non-binary and gender fluid people fit within the Equality Act definition?
The Equality Act 2010 refers to the process of "reassigning the person's sex by changing physiological or other attributes of sex". Some non-binary people will take steps that would clearly be part of this process, but others may not. Some may identify as non-binary or gender fluid without feeling it is necessary to change their appearance or physiology.
The question was addressed by an employment tribunal in Taylor v Jaguar Land Rover Ltd. In that case, the tribunal held that a gender fluid employee was protected under the gender reassignment provisions of the Equality Act.
The tribunal looked at the intentions of Parliament in relation to the Act, and concluded that "it was very clear that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum". The tribunal found that this definition could cover people identifying as non-binary or gender fluid, who are "on a journey which will not be the same in any two cases".
Good practice: Supporting non-binary and transgender employees
Is the law settled?
The decision in Taylor v Jaguar Land Rover Ltd was a first instance employment tribunal decision. This means that it is not binding on other tribunals and future cases could be decided differently. A decision on appeal to the Employment Appeal Tribunal, the Court of Appeal or Supreme Court would be binding on the courts and tribunals below it.
Taking into account that the terms non-binary and gender fluid cover a wide range of people with different experiences, it is likely that cases addressing this question will be fact specific. How the individual expresses and describes their own gender identity will be important in deciding whether the definition under the Act applies.
What approach should employers take?
In terms of avoiding legal liability for discrimination, employers should assume that non-binary and gender fluid employees are protected under the Equality Act 2010.
Aside from the issue of liability and avoiding legal penalties, creating an inclusive working environment in which non-binary employees feel welcome will enable the organisation to capitalise on the benefits of a diverse workforce.
Non-binary employees and gender pay gap reporting
The lack of recognition of non-binary identities in employment legislation also raises issues when it comes to gender pay gap reporting.
The relevant legislation requires employers to report their data on male and female employees but does not say how to account for employees who identify as non-binary.
Government guidance on gender pay gap reporting says that "in cases where the employee does not self-identify as either gender, an employer may omit the individual from the gender pay gap calculations".