The topic of Gender Identity has been more widely and openly discussed in recent years, with society forming a varied range of opinions on this complex matter. These conflicting views must be carefully considered by Employers in a working environment as they have a duty to prevent discrimination and harassment of staff, but each viewpoint may be protected under the Equality Act 2010 (EqA).
Those who hold the view that a person cannot change their sex may be deemed to have a ‘gender critical’ belief which can be capable of protection under the EqA’s protected characteristic of a Philosophical Belief. However, the protected characteristic of Gender Reassignment covers those who are ‘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 protections are equally applicable, so neither one outweighs the other. Given that employers must promote diversity, equality and inclusion, this poses a significant challenge; trying to fairly balance these contrasting opinions.
How the Equality Act defines Gender Reassignment
The protection afforded by Gender Reassignment under the EqA is not limited to a medical or surgical process. It extends to all persons who are in the process of transitioning, whether that is physically or socially. This could mean that medical support such as hormone therapy or surgery is part of the process, or that the clothing, personal expression and lifestyle aligns with the person’s chosen gender.
The term Transgender is often used as an umbrella term to represent those whose gender does not match their sex. But, this is not limited to those changing from one gender to another such as male to female or female to male. It also includes those who identify as non-binary, intersex and gender fluid, amongst others.
Employers must take into consideration a number of factors relating to the protected characteristic of Gender Reassignment. Whilst a person’s gender identity should never be assumed, an individual should be asked how they identify themselves and what their preferred pronouns are. Commonly used gender-neutral pronouns include they, per, ze, sie, ve, or hir. Some also use a gender-neutral title of Mx in place of Mr, Miss, Ms or Mrs. Failing to address an employee in their preferred way, known as ‘misgendering’, can cause hurt and offence and could amount to a claim of harassment against the perpetrator and against the employer.
Case Law
A noteworthy case of gender assignment discrimination in the employment tribunal was Taylor -v- Jaguar Land Rover Ltd. In this case, the claimant told their employer that they were transgender, and would be transitioning from male to female, and they self-identified as both gender fluid and non-binary. The claimant also informed their employer that they had no plans for a surgical transition. Thereafter, the claimant primarily wore women’s clothes.
This prompted insults and abusive jokes from the claimant’s colleagues and raised issues about which toilet facilities they could use. The claimant’s complaints about poor treatment were dismissed by HR and management who did not offer the claimant adequate support in the circumstances. The claimant was successful with their discrimination claim as well as constructive unfair dismissal. The tribunal awarded the claimant £180,000 in aggravated damages. In its judgement, the tribunal heavily criticised the employer’s internal procedures and their managers’ understanding of equality issues. Therefore, it is not enough for companies to simply hold policies; staff must be aware of them and understand the expectations placed on them.
Best Practice for all Employers
In order to provide staff with a supportive and inclusive environment, and encourage all members of staff to promote equality and diversity, we would encourage employers to implement a Gender Identity Policy to set out and clarify their position on the key considerations for the workplace. This should ideally inform and educate the workforce on this private and sensitive topic and reduce the risk of discrimination claims in this area, which are currently on the rise in the UK.
The policy could cover dress code requirements, use of shared facilities such as toilets and showers, and information regarding pronouns and how the transitioning process will be managed and supported. Staff should receive training on the issues in the policy to ensure their understanding and compliance with it. As demonstrated by the above case, it is not necessarily sufficient to merely hold a relevant policy.
If you require advice or assistance in this area or with the preparation of any policies, training, grievances or claims, please contact Solicitor, Phoebe Gogarty, on 0191 307 7590 (pgg@swinburnemaddison.co.uk) or contact our Switchboard on 0191 384 2441 and ask to speak with any member of our experienced Employment team.
This article is for general information only. It does not, and is not intended to, constitute legal or professional advice. The law may have changed since this article was published and we would always recommend that you seek specific advice on any particular legal issue.