The Role Of Expert Reports In Transgender Employment Cases

transgender employment

In the case of v Jaguar Land Rover Ltd, the Employment Tribunal ruled that non-binary and gender-fluid identities are protected under the Equality Act 2010

The Claimant, Ms Taylor, changed the way she presented in 2017. She identified with being ‘gender fluid’, (someone whose gender varies over time) and stated she was “not undergoing gender-reassignment because she was gender-fluid”.

Following her change in presentation, Ms Taylor started dressing in women’s clothes. This led to insults and jokes being made at her expense. Ms Taylor also stated that she had trouble using toilet facilities and received little management support regarding this problem.

Counsel stated that Ms Taylor suffered several incidents of harassment over a long period. The Tribunal heard that she raised concerns about this on many occasions but no action was taken to prevent the harassment from occurring and/or continuing.

When considering its decision, the Tribunal examined the background to section 7(1) Equality Act 2010, which 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.”

Until now, section 7 has been viewed narrowly – applying to those who have or plan to undergo the sex reassignment process. However, the Tribunal was shown a report produced in 2016 by the Women and Equality Select Committee titled “Transgender Equality” which suggested that:

“The protected characteristic in respect of trans people under the Equality Act should be amended to that of ‘gender identity”.   

The Government’s response said (amongst other things):

“Wider categories of transgender people such as cross-dressers, non-binary and gender-fluid people are protected if they experience less favourable treatment because of gender reassignment, for example, if they are incorrectly perceived as undergoing gender-reassignment when in fact they are not, or incorrectly perceived to be male or female… We will keep this under review.”

The response illustrated to the Tribunal that it was not the Government’s intention to restrict the interpretation of section 7 to not including gender fluid and non-binary people.  Therefore, Ms Taylor was successful in her claim.

As more cases of this nature reach the Courts, it is interesting to note the role of an expert report in examining the impact of any alleged bullying and harassment on the Claimant.

Expert evidence in discrimination and bullying claims

The role of the expert in employment law claims is often to assess and present the psychiatric damage suffered by the Claimant following the breach of a protected characteristic. When it comes to those in the LBGTQ+ community the risk of mental and physical health issues developing as a result of abuse at work is a serious matter. According to the 2018 Stonewall LBGT in Britain Work Report, “one in eight trans people (12 per cent) have been physically attacked by customers or colleagues in the last year because they are trans”.  Furthermore, the report states:

“Almost one in five LGBT staff (18 per cent) have been the target of negative comments or conduct from work colleagues in the last year because they are LGBT. This includes being the target of derogatory remarks, experiencing bullying and abuse, and being outed without consent. This rises to a third of trans people (33 per cent) and one in four LGBT disabled people (26 per cent).”

Of course, transgender people also face discrimination and abuse outside the workplace.  And the impact is devastating.  The Trans Mental Health Study 2012, the largest of its kind ever conducted in the UK, found 88% of respondents showed symptoms of depression and 75% of anxiety compared with 20% of people in the UK general population.

Conclusion

The landmark decision in Taylor v Jaguar Land Rover Ltd opens the way for non-binary and gender fluid people who have suffered workplace discrimination, harassment, and bullying to confidently bring a claim under the Equality Act 2010.  Furthermore, there is no reason to suggest that those who have other types of gender identity such as agender, genderflux, and pangender will not have a protected characteristic under section 7 of the Act.

When it comes to obtaining expert evidence in these types of claims, it is vital to instruct a team who not only understands the challenges faced by transgender people but also can be trusted to act with compassion and empathy.

Speak to our experts

Expert Court Reports provides expert witnesses and medicolegal court reports for solicitors, barristers and other agencies including the police, probation services, prisons and third-sector organisations as well as private clients.  To arrange an expert report related to transgender employment discrimination, harassment, or bullying, please call us on 01865 587865, email office@expertcourtreports.co.uk, or request a call by completing our online form

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