In fulfilment of my Masters' project at Northumbria University I wrote a dissertation on the subject of gender norms and gender dysphoria and how this has translated into employment law. Whilst this was an academic exercise, I identified the potential issues for employers and employees and this article aims to inform and advise you on this subject.
Gender identity is an evolving concept, and its importance has gained more traction in recent years. The stereotypical gender roles have come to be broken down and people are now able to express themselves more freely.
Changes can be seen in every aspect of life, but in the context of employment, this has altered the position on things like dress codes as well as the discrimination provisions.
Case Law
Whilst many attitudes towards gender diversity have become more favourable, the recent case of Maya Forstater v CDG Europe [2021] WL 02365047 has highlighted that there is still a strong argument, backed by religion and biology, which supports the preservation of sex-based rules. Beliefs that one’s sex is unchangeable and a lack of belief in gender identity have been determined by the Tribunal to be protected against discrimination via section 10 of the Equality Act (EqA) 2010 (the protected characteristic of religious or philosophical belief). Evident from other cases after Forstater including Ms A Bailey v Stonewall Equality Ltd and others 2202172/2020 and the views expressed by others commenting on the subject, these views are somewhat widely held. Gender reassignment is a protected characteristic under section 7 EqA and the recent case of Mrs R Taylor v Jaguar Land Rover Ltd [2018] 1304471 suggests that this extends to include those who are non-binary too.
As a result of the Tribunal decisions, employers have obligations to both their transgender/ non-binary employees and to those with gender critical views, and striking a balance in these instances is bound to be difficult, as the two are inherently opposing.
Key points for employers
Difficulties are likely to arise for employers in supporting gender diverse staff, particularly in relation to right to work checks, implementing dress codes and the facilities offered to staff. When checking any employee’s identity, ensuring only relevant documentation is requested and maintaining confidentiality is paramount. Rules should be the same for all so as to preserve equality. Flexible dress code policies are recommended so that employees can adopt an appearance that best represents their identity. Any specific dress rules should ensure that there is a legitimate business aim in support of them. Single-sex bathrooms and spaces are likely to indirectly target non-binary staff however employers only have a duty to provide the facilities that they reasonably can. Though the individual circumstances for each employee should always be considered.
Issues may also arise where employees are expressing gender critical views, the way in which this is done is key to how employers are able to react. Case law has made clear that simply expressing views of this nature on the likes of social media should not have an impact on one’s job. Expression within the workplace or the targeting of other employees on the other hand is likely to justify some disciplinary action. Again, this is very circumstance specific and therefore it is key that legal advice is sought before any action is taken so as to avoid discrimination claims.
Employers should maintain sensitivity throughout, those who are transgender and non-binary are likely to be experiencing/have experienced great difficulty with their identity and therefore ease in your approach will be welcomed. Employees should also aim to be sensitive in the way their validly held beliefs are expressed in the workplace. In the interests of a positive working environment for all, respect for other’s views and/or way of living should be preserved.
