Learn how to better support non-binary employees and colleagues in the workplace with this guide from employment lawyer Catherine Wilson.
Recent years have seen increasing recognition of the importance of difference and diversity in the workplace. This emphasizes the obligations upon the employer to ensure the workplace is not only legally compliant but also provides an inclusive and tolerant environment. In this context, the Equality Act 2010 currently sets out 9 protected characteristics, including race, gender, age, disability, and gender reassignment.
In recent years, attention around the gender reassignment characteristic has been focused not only on binary transgender employees, but also employees who identify as non-binary or genderfluid. I’ll discuss below some of the specific case law and practical steps employers should take in this area to ensure they are not at risk of discriminating against these employees.
It is important to state at the outset that many of these practical steps have a positive application across the workplace and should not be viewed solely in relation to any particular protected characteristic.
What does it mean to be non-binary?
Language is key in this area. The idea that there are two genders is sometimes called a “gender binary”, because binary means having two parts. The expression “non-binary” is one term people use to describe genders that do not fall into one of these two categories (of either male or female). People may use terms such as “third gender”, “two-spirit” (a historical and modern Native American term), “androgynous”, and “genderfluid”.
Irrespective of specific terminology, the belief that there is a spectrum of gender identities that are not exclusively masculine or feminine is a concept which has received increasing prominence over recent years in Western societies, though there is a long history of non-binary and transgender identities. For the purposes of this blog I will focus on the term “non-binary”.
Are non-binary people transgender?
Non-binary identities fall under the transgender umbrella, since non-binary people typically identify with a gender that is different from the one they were assigned. It is important, however, to note that some non-binary people do not consider themselves to be transgender.
Are non-binary employees protected by the Equality Act 2010?
They are. It is important to note that the Equality Act 2010 currently refers to gender reassignment as the relevant protected characteristic. Section 7 provides:
“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”.
A strict interpretation of this was that an individual will only gain this protection if they make, or propose to make, a change from either male to female, or female to male.
In September 2020, the Employment Tribunal in the case of Taylor v Jaguar Land Rover Limited considered whether Section 7 should also cover employees who identify as non-binary and gender fluid. The claimant, Ms. Taylor, identified as non-binary and genderfluid. The Employment Tribunal ruled that the claimant was indeed covered by the legislation and upheld her claims for direct discrimination, harassment, and victimization on the grounds of gender reassignment.
What are the learning points from the Taylor case?
Ms. Taylor was a long-standing employee with over 20 years’ service as an engineer with Jaguar Land Rover Limited. She previously presented as male, but in 2017 began identifying as genderfluid, from which time she started to dress in women’s clothing.
From this point, Ms. Taylor was subjected to insults and abusive jokes from work colleagues. She experienced specific difficulties with the use of toilet facilities and received little to no support from either HR or wider managerial teams. As a consequence, Ms. Taylor suffered severe depression, including suicidal thoughts. She was subject to repeated referrals to occupational health, but these were not seen as particularly helpful to either Ms. Taylor or for the wider situation.
In short, this case was unfortunately a textbook example of how not to treat non-binary/genderfluid people in the workplace. The key learning points are:
- Policies, however well written or intentioned, are of no use if either managers – or more worryingly, HR staff – don't know they exist.
- Telling a transitioning employee to use the disabled toilets is inappropriate, aside from as a temporary or interim measure. Identifying as non-binary does not equate to a disability.
- Responsibility cannot be passed to the employee if there is no clear policy or process to follow to raise concerns and seek assistance. The oft quoted mantra that “someone must name names” in order to deal with harassment is not advisable, as this is rarely helpful to either party.
How can employers support non-binary staff?
It’s important to support non-binary employees in the workplace and pay particular attention to instances of discrimination, such as subconscious and unconscious bias. Here are some other ways you can support non-binary employees:
Policy and procedures
Update written diversity and inclusion policies. So called “Equal Opportunities” policies are a starting point; however, employers should consider introducing a specific trans inclusion policy. Also, review and update any bullying, harassment and grievance procedures to ensure they are fit for purpose.
Introduce and maintain regular diversity and inclusion training of staff at all levels. It is not the role of LGBTQ+ employees to educate co-workers; however, employers may wish to speak to affected staff in confidence to see if they would like to be involved in devising some elements of this training.
Training should be offered not only as a part of induction, but as key tailored training on events such as promotions to supervisory and managerial roles. Consideration could also be given to providing enhanced training for businesses provided by expert external providers, such as Global Butterflies.
Record attendance on training courses and ensure regular updates are provided throughout employment. You could also consider appointing trained designated contacts to provide support to non-binary staff.
Ensure a gender-neutral pronoun is an option for employees and model support of the use of such pronouns by senior staff. Also, assess any practical or logistical barriers and keep them under regular review, for example, the need for gender neutral toilets or changing rooms shower facilities.
If certain types of staff are required to wear uniforms, employers should consider the introduction of a gender-neutral option.
Review how data is managed: speak with the relevant employees to plan how their information should be updated and maintained in accordance with data protection principles.
Read more from the myhrtoolkit blog
An employer’s guide to LGBTQ+ inclusion in the workplace
Written by Catherine Wilson
Catherine is an expert employment lawyer and HR problem solver. She works as an Employment Partner at W Legal Limited and also runs her own employment law and HR consultancy, training, and writing business, McBrownie Ltd.