In For Women Scotland v The Scottish Ministers, the Supreme Court stated that wherever it appears in the Equality Act 2010, the word "woman" "must have a single, consistent, stable and predictable meaning". The conclusion that the words "man", "woman" and "sex" relate only to biological sex, meets the need for legal certainty. But it also leaves employers struggling to understand their obligations and, given the recent conclusion of an employment tribunal in Lockwood v Cheshire & Wirral NHS Foundation Trust & Ors, leaves a section of society apparently without protection under the Equality Act.
Background
At the centre of this case was the question of whether a non-binary employee, who had no intention of transitioning from one binary sex to another, fell within the protected characteristic of gender reassignment under the Equality Act. They had transitioned from female to identifying as trans or gender-fluid, adopting a non-gender specific first name and neutral pronouns.
The claimant made a number of allegations against their employer and several colleagues. These included deadnaming, misgendering and being assigned a patient who had indicated a preference for a female therapist. The claims failed before the employment tribunal. Included in the tribunal's judgment was a finding that although the claimant had been "distressed, upset and offended" by the incidents they described, the statutory threshold for harassment under the Equality Act was not met. The tribunal could not conclude that any of the incidents violated the claimant’s dignity. However, it is the tribunal’s conclusion on the reach of the protected characteristic of gender reassignment that is of most interest.
In interpreting the Equality Act in light of the Supreme Court’s judgment in For Women Scotland, the tribunal concluded that the claimant did not have the protected characteristic of gender reassignment. Sex was, according to the Supreme Court, a binary concept. Section 7 of the Equality Act states that a person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning that person’s sex. This, according to the tribunal, required "a 'from–to'". The claimant was not reassigning, nor intending to reassign, sex from female to male. Accordingly, the claimant did not have the protected characteristic of gender reassignment and their claims could not succeed.
Commentary
It is worth noting that this judgment is of the employment tribunal and does not set any precedent. It is also at odds with older case law, including the judgment in Taylor v Jaguar Land Rover Ltd, which concluded that it was Parliament’s intention to protect a person at any point on a spectrum of moving away from birth sex. However, Taylor was decided before the Supreme Court’s judgment in For Women Scotland and concerned a claimant who identified as gender-fluid during their transition from male to female. Taylor is also an employment tribunal judgment and therefore does not set precedent, although it was subsequently endorsed by the High Court in R(AA) v NHS England. The employment tribunal in Lockwood considered both these cases alongside the For Women Scotland judgment.
What does this mean for employers?
In practical terms, an employer’s approach to allegations of harassment should focus on whether harassment has occurred and not on whether the complainant falls within a particular statutory definition. A working environment where everyone understands that harassment is unacceptable is a healthy one that benefits all. This is also an area where we can expect to see further litigation, either by way of an appeal in this case or through similar cases being heard.
As is always the case in claims of discrimination or harassment, employers should respond promptly to complaints, carry out proper investigations and take appropriate action where required. Employers should not wait for legal interpretation to evolve but instead take a proactive approach to creating an inclusive culture based on decency and respect for all.
