What’s in a Pronoun?

How does the law protect the rights of people who identify as nonbinary? Following singer Sam Smith’s announcement that his pronouns will be “THEY/THEM” going forward, it’s worth reviewing what the law now offers by way of protection in a shifting legal landscape.

Smith identifies as nonbinary. According to Refinery 29 and GLAAD, this is a term “used by some people who experience their gender identity and/or gender expression as falling outside the categories of man and woman. They may define their gender as falling somewhere in between man and woman, or they may define it as wholly different from these terms. The term is not a synonym for transgender or transsexual and should only be used if someone self-identifies as non-binary and/or genderqueer.” 

Gender identity and the Equality Act 2010

The Equality Act 2010 updated existing legislation in the UK on protections against discrimination in employment and access to private and public services based on protected characteristics. These include, “gender reassignment”, which is defined in the Act as follows:

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.

This protection applies to every stage of gender transition whether the individual in question is considering it, undergoing the process, or has completed a transition.  But while the legislation protects those individuals who are taking steps to transition, as matters stand the law does not protect those who identify as nonbinary. UK-based lobbying group Stonewall has stated that a nonbinary person may be protected if a legal ruling determined they were a man or woman, as these are the only two genders currently recognised in law. But it is clear that either further legislation must be passed or the courts must rule before this point is clarified from a legal perspective.

Under the Act, there are four main types of discrimination from which the characteristic of gender reassignment is protected:

  • Direct discrimination
  • Indirect discrimination
  • Harassment
  • Victimisation

Irrespective of the current state of the law, employers should do everything they can to treat all employees with dignity and respect. So, what can an employer do?

Considerations for employers

  • Raising awareness amongst colleagues is essential, and training is key.
  • Although the Equality Act does not apply to those who identify as nonbinary, the Human Rights Act 1998 allows everyone the right to a private life, so employers must remember that confidentiality is essential. All employee data should be managed carefully, so maintaining confidentiality with personal details should not be difficult. Best practice would suggest an employer takes it upon themselves to maintain strict confidentiality towards any gender-related records they hold – the employee should not be required to specifically ask for this.
  • Those with two or more years of service have the right not to be unfairly dismissed. This includes the right not to be constructively unfairly dismissed, thus treating a nonbinary employee in a manner which is likely to undermine the relationship of trust and confidence could result in an unfair dismissal claim.
  • An effective policy or system for dealing with gender matters should be implemented. ACAS has some helpful guidance on the subject, which can be found here.

Research published by Stonewall in 2018 shows that daily discrimination in the workplace against people who identify as nonbinary or gender-fluid is, sadly, not unusual.  According to their findings, one in eight transgender employees had been physically attacked by a colleague or a customer in the past year. It also showed that half have hidden their identity at work for fear of discrimination. With many people now identifying themselves as neither male nor female, the steps above will assist employers in addressing this issue in the workplace.

Aside from the ACAS guidance referenced above, there is a range of literature and training courses available to help; a selection of which is listed below:

The Open University, 2 hr course, ‘Understanding Gender Identity: Trans People in the Workplace’

Scottish Trans Training

Scottish Government – understanding gender identity and reassignment

Stonewall Scotland, Advice for Employers

Mermaids Training

Holyrood Magazine – article highlighting the bureaucracy surrounding being transgender in Scotland

Managing the complexity of workplace discrimination can be daunting. Rooney Nimmo has assisted many clients to interpret the law and implement policy to help ensure a safer workplace for employees.  If you have questions or need assistance, please get in with touch with Dawn Robertson, our Partner who specializes in employment law in the UK here.

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