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The employment tribunal has ruled that gender reassignment discrimination includes individuals who identify as gender fluid and non-binary. 

Employment Judge Hughes in the Birmingham Employment Tribunal has given oral judgment on liability in the case of Taylor v Jaguar Land Rover (JLR) with written reasons to follow and a remedy hearing set for 2 October 2020. Ms Hughes found in favour of an engineer, Ms Taylor, who was “subjected to insults and abusive jokes at work” and had restroom access restricted. She had received little support from the firm.

In 2017 Ms Taylor identified as gender fluid / non-binary, from which time she usually dressed in women’s clothing. She brought claims of harassment, direct discrimination and victimisation on the ground of gender reassignment. JLR argued Ms Taylor, as gender fluid / non-binary, did not fall within the definition of gender reassignment under section 7 of the Equality Act 2010.

According to a report by Old Square Chambers: 'The Tribunal noted that the question of whether a gender fluid / non-binary person fell within section 7, was a novel point of law. During submissions there was reference to Hansard comments made during the Equality Bill parliamentary debates in 2009.' It was noted in that regard that the Solicitor-General had referred to a gender “'spectrum' and that gender reassignment 'concerns a personal journey and moving a gender identity away from birth sex'.

The law firm, which represented the claimant, noted that the Tribunal held it was 'clear… that gender is a spectrum” and that it was “beyond any doubt' that Ms Taylor fell within the definition of section 7. Judge Hughes concluded: '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.'

Speaking for Old Square Chambers, Robin White said: '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.'

The implication of this judgment is that other complex gender identities may also fall within the definition of gender reassignment under section 7 of the 2010 Act where individuals propose to undergo a process of moving their gender identity away from their birth gender. Gay rights charity Stonewall hailed the ruling as a 'milestone moment in recognising the rights of non-binary and gender fluid people'.

Organisations should bear in mind that this is a tribunal decision and, as such, is non-binding and does not represent a definitive change in legal stance. It is also currently unclear if this ruling is to be appealed to the Employment Appeal Tribunal. That said, it does bring the cause of a number of individuals with gender complexities to the fore and we may therefore see an increase in demand for organisations to acknowledge it. 

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