The Birmingham Employment Tribunal has decided that a non-binary/gender fluid male to female transitioner did have protected characteristic of gender reassignment despite not having undergone any medical procedure in the case of Taylor v Jaguar.
Ms Taylor worked for Jaguar as an engineer.
In 2017, she informed management that she was transitioning from male to female. Once she started to attend work presenting as a female she was subjected to a campaign of harassment and discrimination, and ultimately resigned in response to this. She raised various claims of discrimination on grounds of gender reassignment, and constructive dismissal.
The tribunal upheld her complaint that colleagues openly ridiculed her appearance, referring to her as “it”, and asking her whether she was going to “have her bits chopped off”.
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 sought to argue that Ms Taylor was not within this protected characteristic because she described herself at times as “non-binary” or “gender fluid”.
The tribunal upheld Ms Taylor’s claims holding that she had the protected characteristic of gender reassignment because irrespective of how she described herself at any given time, she was “on a journey” of transition from male to female, and it was clear that this did not necessitate any medical process.
Unsurprisingly given the facts of the case Ms Taylor succeeded in her claims of discrimination, harassment and constructive dismissal.
The judgment strongly condemned Jaguar’s conduct:
“We thought it astounding that there was nothing in the way of proper support, training and enforcement on diversity and equality until the Claimant raised the issue in 2017, bearing in mind how long the legislation has been in force. We had not seen a wholesale failure in an organisation of this size in our collective experience as an industrial jury. This case came about as a result of the culture of the organisation. The culture is not aligned to the Respondent’s policies, agreements, or statements of intent. This is a lesson that has to be learnt at the highest level. It is a systemic failure and demonstrates that the Respondent values its employees’ ability to perform their key roles far more than their personal welfare and wellbeing. We were pleased that the Respondent sent some of its senior managers to hear our oral reasons, and we are hopeful that this will lead to meaningful change.”