Gender fluidity is a protected characteristic

Under the Equality Act 2010 it is against the law to discriminate against someone because of issues such as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation. These are known as the 'protected characteristics'.

A recent Employment Tribunal decision has held that a gender fluid/non-binary employee who suffered abuse at her place of work was discriminated against due to the behaviour that they encountered in the workplace. The employee worked for Jaguar Land Rover and changed the way they presented themselves from male to female in 2017. The employee began wearing women's clothes to work and suffered insults and harassment. The employee asserted that they did not receive management support and thus made a claim for constructive dismissal.

The Employment Tribunal had to decide whether being gender fluid/non-binary was a protected characteristic under the Equality Act 2010. The judge was quite clear in his assessment when he said that 'is gender is a spectrum' is and that it was 'beyond any doubt' is that the employee deserved protection.

Perhaps unsurprisingly, the company has apologised to the employee for the harassment that they received.

The case is interesting because although it does not set a legal precedent, it is the strongest indicator yet that the judiciary will stand firm in such circumstances. It is hard to imagine that the case will not at the very least be influential in other similar cases.

Employers must thus ensure that any policies which are in place to support employees and protect them from any form of abusive behaviour are properly implemented by all line managers. Once again, effective training must be central to this objective.

To discuss this or any other employment matter, contact us.

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