People hold a non-binary flag. (Stewart Kirby/SOPA Images/LightRocket via Getty Images)
An employment tribunal has affirmed that the UK’s Equality Act extends discrimination protections to non-binary and gender fluid people, ruling against Jaguar Land Rover .
In its ruling on Monday (14 September), Birmingham employment judge Patrice Hughes found in favour of an engineer, R Taylor, who was “subjected to insults and abusive jokes at work” and had their restroom access restricted.
Under the non-discrimination law passed by the Labour government in 2010, people are entitled to protection from discriminatory treatment in the workplace based on a number of protected characteristics, including sexual orientation and “gender reassignment”.
Jaguar Land Rover argues that it’s legal to discriminate against non-binary people.
The company had insisted that the discrimination protections did not apply in the case, arguing that the term “gender reassignment only applies to people who transition between the binary genders of male and female.
However, the tribunal made clear that “gender is a spectrum” and that it is is “beyond any doubt” the protections apply to people with diverse gender identity or expression.
The tribunal made clear that Jaguar Land Rover’s argument is “totally without merit” and that the employee faced a “continuing course of harassment” because of their gender identity.
The judgement concludes: “This employment tribunal considers it appropriate to award aggravated damages in this case because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings.
“We are also minded to consider making recommendations in order to alleviate the claimant’s injury to feelings by ensuring the respondent takes positive steps to avoid this situation arising again.”
LGBT+ campaigners hail ‘hugely positively step forward for the recognition of non-binary people’.
Lui Asquith, legal and policy director at Mermaids said: “This is an important judgment that we hope works to reassure all current and aspiring non-binary professionals that our courts will insist on them being respected and protected in the workplace too.
“Decisions like this, even if only at first instance, is a hugely positively step forward for the recognition of non-binary people within wider society. ”
Stonewall hailed the ruling as a “milestone moment in recognising the rights of non-binary and gender fluid people”.
The charity added: “Up until now, it’s not been clear whether non-binary people would be protected by anti-discrimination legislation, which is what makes this employment tribunal judgment so important.”
Robin Moira White of Old Square Chambers, who represented the claimant, said in a statement: “This is an important judgment, albeit at first instance, recognising for the first time the rights of a small number of individuals with complex gender identities. Once again the courts have shown themselves willing to stand up for the rights of individuals in a manner which demands respect and admiration.
“I pay tribute to my brave client. I also pay tribute to James Morton of the Scottish Trans Alliance who was of particular assistance in preparing the important point on the scope of the Equality Act provisions.
“I see no reason why this ruling should not extend to other complex gender identities such as agender and gender queer.”
PinkNews has contacted Jaguar Land Rover for comment.
What does the Equality Act say about trans and non-binary people?
Although not previously tested in court, non-binary people have previously benefited from the protections afforded under the Equality Act, which state that “a person has the protected characteristic of gender reassignment if the person 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”.
People are protected from discrimination even if they are only perceived as having a characteristic – for instance, a straight man who faces homophobic discrimination because he is considered to be gay – meaning non-binary people have historically been protected on the basis that they are perceived as having the characteristic of gender reassignment.
Although the wording of the law is behind international best practice on the issue, campaigners have been fearful of pressing for updates to the Equality Act – not least because any attempt to amend the law are liable to be derailed or poisoned by an aggressive anti-trans lobbying campaign.