Are non-binary staff protected under the gender reassignment provisions of the Equality Act?

In Taylor v JLR Limited a tribunal ruled that an employee who was transitioning from male to female and referred to themselves as ‘gender fluid’ was protected under the gender reassignment provisions in the Equality Act. Since then, it has been widely reported that non-binary people who do not see themselves as fitting within the binary of male or female are likely to be similarly protected. But are they?

In Lockwood v Cheshire and Wirral NHS Foundation Trust and others an Employment Tribunal had to decide whether an employee who claimed not to be male or female was able to bring a harassment claim under the protected characteristic of gender reassignment. 

Facts

Lockwood obtained a job in the Trust in 2021. Their application form was in the name of Heather and indicated they were non-binary. In 2023 Lockwood emailed the Trust to advise them they had changed their name by deed-poll to Haech and that they identified as ‘trans/gender-fluid’ and were not male or female. They said their pronouns were they/them.

They asked the Trust's ICT team to change their email signature and other systems on the network to reflect their name change. ICT did as they were asked but were not entirely successful due to the complexity of their systems. Lockwood discovered that their old name appeared on Teams and on their emails. Lockwood went off sick with stress and Covid.

Lockwood submitted an informal grievance to their manager about what had happened. The manager explained that ICT had created a new trust profile for Lockwood in their new name and this would ‘remove all traces’ of their previous account, and that ICT would help them to sign back into their accounts when they returned to work. The manager also apologised.

During this time Lockwood was supported by the Head of Workforce Wellbeing who apologised for what had happened and set out a number of ways the Trust could improve its service to trans and non-binary staff.

Lockwood wasn't happy with either apology and demanded a formal written apology from the ICT team and to see a plan of actions it would take to ensure it didn't happen again. They also asked for a formal apology from their manager which acknowledged the harm caused. These weren't forthcoming and they raised a formal grievance about the same complaints. 

A different manager investigated the grievance and set out the steps which had or were being taken to alleviate Lockwood's distress. The head of ICT issued a written apology to Lockwood, and their manager provided a further apology. Lockwood did not feel that the apologies were in “the right tone” but does not appear to have appealed the outcome.

All went quiet for a year or so. Then a series of incidents happened which Lockwood raised via a formal grievance as follows: 

• Two ICT tickets misgendered Lockwood by using the ‘she’ pronoun
• Lockwood's previous first name appeared on one of the Trust's systems
• A nurse misgendered Lockwood when she received a vaccination
• A colleague misgendered Lockwood by repeating a conversation about them made by a patient
• The trust sent Lockwood a copy of their original contract which contained their former name; and
• The trust allocated a patient to Lockwood who stated a preference to ‘see a female therapist’.

Lockwood complained to the tribunal that these incidents amounted to harassment and that they were protected under the gender reassignment provisions in the Equality Act. Lockwood also brought claims against six managers/employees involved in these incidents. 

The law

Section 7 of the Equality Act 2010 states: (1) 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.

Tribunal decision

Lockwood argued that ‘proposing to undergo’ is an ambiguous term and that parliament intended it to include non-binary and gender-fluid people. 

The tribunal said the expression was clear. It agreed that Lockwood was on a journey in the sense they had changed their name and adopted they/them pronouns but said this was not enough to fit within the definition of gender reassignment which requires moving ‘from one thing to another’. Lockwood had no intention of taking steps to change their sex, medical or otherwise. 

The tribunal said it wasn't enough for an individual to move away from their biological sex - they need to have the purpose of reassigning their sex to that of the opposite sex. The Supreme Court in For Women Scotland had made it clear that sex means biological sex and is binary. In light of this the tribunal held that ‘the journey can only be from one sex to another’. 

Even though that disposed of the case, the tribunal went on to consider whether the specific allegations would have amounted to harassment if Lockwood had the protected characteristic of gender reassignment.

Harassment is defined as unwanted conduct related to a relevant protected characteristic, and has the purpose or effect of:

• violating their dignity, or
• creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

‘Deadnaming’ and misgendering allegations by staff

The tribunal accepted that Lockwood was distressed, upset and offended by these incidents but, viewed objectively, could not find any facts to demonstrate that these had the effect of violating their dignity: ‘Violating is a strong word. Offending against dignity or hurting is not enough’. Nor was there any evidence to support Lockwood's contention they felt “unsafe”.  

It then considered whether these incidents had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for Lockwood. It concluded it didn't because many staff were unfamiliar with they/them pronouns and on each occasion where Lockwood complained, they received ‘an appropriate apology’ and managers ‘demonstrated a real intention to do their best to ensure they get it right and … in most cases, put in place positive steps to achieve this’.

By contrast, the tribunal found that Lockwood was unwilling to accept the apologies they've been given, adopted an ‘inflexible stance’ and was ‘unforgiving’ when mistakes occurred. They contributed to the environment they complained about. 

Contract containing Lockwood's previous first name

Lockwood asked for a copy of their original contract. The tribunal agreed with the trust's policy of not altering original documents. It accepted this caused Lockwood distress but said it was not reasonable for it do so and ‘the claimant’s prior identity is not something that can be extinguished'.

Patient asking for female member of staff

Lockwood was asked to view a patient. They looked on the patient system and saw the patient had said they'd prefer to see a female therapist. Lockwood ‘jumped to the conclusion’ that the admin team had made a mistake, without bothering to check. In fact, there was a ‘perfectly reasonable explanation’ for allocating the patient to Lockwood and the team had apologised after Lockwood had complained. It was therefore unreasonable for this incident to have the effect Lockwood alleged.  

Our view

The judgment is binding on the parties but not on any other tribunal or court. It is, however, the first case in which a tribunal has had to grapple with the statutory meaning of gender reassignment following the Supreme Court's judgment that sex is binary and there is no intermediate state. 

The EHRC Code of Practice on Employment at paragraph 2.23 says that ‘gender reassignment’ is a personal process, that is moving away from one’s birth sex to the preferred gender, rather than a medical process. That was the only reference the tribunal could find to indicate that a process to move away from birth sex is sufficient to meet the definition. The Code was last updated in 2015 and the tribunal said it was of ‘limited assistance’ in this instance. That's a polite way of saying, they think the Code is wrong on this point.   

As we've previously explained, a tribunal has to take into account the EHRC Code of Practice when it is relevant to any claims it is analysing. But it does not impose legal obligations on employers and isn't an authoritative statement of the law. Only tribunals and courts can say what the law means and they can ignore any code of practice or guidance that incorrectly interprets the law.   

The EHRC has said it will update the Employment Code to reflect the For Women Scotland case, but I suspect that's a long way off. The Employment Code is huge and it will take many months to go through it and then to consult on the proposed changes. Even when that process has been concluded the new Code will have to be approved by the equalities minister, and then put before parliament. And we know from the continuing delay in putting the updated Code of Practice on Services before parliament, that process may not be straightforward either.

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