Does a person need to undergo or intend to undergo any medical treatment to have the protected characteristic of gender reassignment?
No, held the Birmingham Employment Tribunal in Taylor v Jaguar Land Rover Ltd.
These bulletins don’t usually report on first instance tribunal decisions, because they have no weight as precedent. But this one has been widely trailed – prior to publication of the written reasons this week - as foreshadowing a radical development of the law to bring ‘non-binary’ or ‘gender-fluid’ individuals within the scope of the gender reassignment protected characteristic.
Ms Taylor worked for Jaguar as an engineer. In 2017, she told managers that she was transitioning from male to female. She suffered harassment and discrimination after starting to attend work in female attire, and ultimately resigned. She complained of various forms of discrimination on grounds of gender reassignment, and constructive dismissal.
The tribunal found numerous instances of mistreatment, including colleagues openly ridiculing her appearance, referring to her as “it”, and asking her whether she was going to “have her bits chopped off”. The full findings are summarised in paras 202-208.
Section 165(1) of the Equality Act 2010 provides:
“A person has the protected characteristic of gender reassignment if the person is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing the physiological or other attributes of sex.”
Jaguar argued that Ms Taylor was not within this protected characteristic because she described herself at times as “non-binary” or “gender fluid”.
The tribunal held (inevitably, given the language of the section) that Ms Taylor was protected, because irrespective of how she described herself at any given time, she was “on a journey” of transition, and it was clear that that did not necessitate any medical process. Not surprisingly given the findings of fact, the Claimant succeeded in her claims of discrimination, harassment and constructive dismissal.
Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary.