The case concerns Sean/Rose Taylor, a man who began to identify as non-binary and to wear women’s clothing to work on some days as part of a process of transition. At an initial discussion it was suggested that he might use the unisex accessible toilets, but later after discussions with HR he was allowed to use any toilets he wished. Taylor sued Jaguar Land Rover over harassment (comments from co-workers) and over the handling of the toilet situation.
“Gender reassignment need never be a medical process”
The Tribunal said Jaguar Land Rover “put the onus on the Claimant to decide which toilets to use and to deal with any challenges made by colleagues unhappy with the choice”. It said that Jaguar Land Rover should have put in place measures to prevent these challenges, although it didn’t say what that could involve.
The Tribunal considered the question of what “Gender Reassignment” (S7) of the Equality Act means:
“… in terms of gender-reassignment, the intention was to make it clear that a person need not intend to have surgery, or indeed ever have surgery, in order to identify as a different gender to their birth sex. We consider that the words we have highlighted in paragraph 173 make it clear, and beyond dispute, that gender reassignment need never be a medical process.”
This is a first instance employment tribunal case, so doesn’t create a legally binding precedent.
Anya Palmer and Monica Kurnatowska write that on the facts of this case, the outcome that Taylor was covered by the protected characteristic of gender reassignment is unsurprising:
“The respondent argued that since the claimant did not intend to undergo surgery, the protected characteristic of ‘gender reassignment’ did not apply. The tribunal rejected this argument and concluded that
the words ‘physiological or other attribute of sex’ in s.7(1) EqA meant that physiological changes are not required; indeed, ‘gender reassignment need never be a medical process’. While some reports suggest the tribunal found gender to be a ‘spectrum’, in our view, that is a misreading of the case. The tribunal held that Parliament intended gender reassignment to be a spectrum moving away from birth sex and that a person could be at any point on that spectrum, ie any point in the transition process and regardless of what label they adopt. The tribunal concluded that while no two cases are the same, it was ‘beyond any doubt’ that the claimant was protected by s.7(1) EqA.”
Maya Forstater raises questions about whether the tribunal was correct in interpreting this to mean that the person must be allowed to use opposite sex facilities:
“… the tribunal itself tried to close off the practical solution of allowing Taylor to use the disabled toilet where other gender-neutral options were not yet available. Its conclusion does not appear to have any basis in law.
And its suggestions do not engage with the need for clear, fair rules in large organisations.”