Employment law and nonbinary people - what employers need to know

Over the past decade, there has been a growing awareness that gender identity is not limited to the binary of male or female. Countries such as Canada, Australia, Germany, Nepal, the Netherlands and India already allow citizens to state a non-binary gender category on their passports. Facebook now has 71 different gender options.

The UK’s Office for National Statistics is working on collecting official data but, according to estimates, 0.4% of the population could identify as non-binary. That’s around 250,000 people in the UK today.

What being non-binary means

Non-binary is a gender identity, meaning someone does not experience gender exclusively as a male or female. The definition offered by the National Center for Transgender Equality (NCTE) states that some people do not fit neatly into the categories of "man" or "woman," or “male” or “female”. For instance, some people have a gender that blends elements of being a woman or man, or one that is different than either male or female. Some people don't identify with any gender, while others’ gender changes over time.

The NCTE definition adds that people whose gender is not male or female use different terms to describe themselves. In addition to “non-binary”, other terms include “genderqueer”, “agender” and “bigender”, and there are many more. None of these terms have precisely the same meaning, “but all speak to an experience of gender that is not simply male or female”. While non-binary people are generally regarded as being within the “T” community of the LGBT+ acronym, some of them choose not to use “transgender” as a descriptor because it has connotations with the binary model.

As one of the less well-understood communities under the LGBT+ umbrella, non-binary individuals may be particularly vulnerable to discrimination - including from within the LGBT+ community itself. According to Stonewall’s LGBT in Britain Work Report in 2018, over a third of non-binary people (37%) were not out at work. By way of comparison, the report found that just 4% of lesbians and 7% of gay men were not out at work.

Gender Recognition Act and proposals for reform

In terms of relevant current legislation in this area, the Gender Recognition Act 2004 (GRA) enables transgender people to apply for a Gender Recognition Certificate (GRC) to change their legal gender. The GRA is limited in scope by not recognising any gender identity other than male or female - it does not, for example, accommodate people who have a permanent non-binary gender or a fluid gender. The process prescribed by the GRA, where it does apply, the process has been described as costly, administratively burdensome and intrusive. The GRA has also been criticised for pathologising trans people and containing a spousal veto. In 2018, the government revealed that only 4,910 people had legally changed their gender since the GRA came into force – a very small proportion of the UK’s trans community.

Whilst a progressive piece of legislation for its time, many now regard the GRA as outdated. In July 2018, the government equalities office opened a consultation on reform. The questions asked included, among other things, how it might make be made easier for trans people to achieve legal recognition, and whether there should be changes to the GRA to accommodate the growing community of individuals who identify as non-binary. Over 100,000 submissions to the consultation were received.

Two years have now elapsed and there has been no official response from the government to date. It has been recently reported that, despite 70% of respondents to the consultation being in favour of reform, the government might decide to abandon them, although recently Liz Truss stated that plans for GRA reform will “not be rolling back the rights of transgender people in the UK”.  The EHRC states, in its “position as the nation’s equality body” that it is important that, through GRA reform, the process for changing the legal recognition for your gender is “reviewed, modernised and simplified”.

In another separate but related recent development, a legal challenge to the government’s policy of allowing only two gender options on passports recently failed in the Court of Appeal, which held that this did not amount to an unlawful breach of human rights.

For many people identifying as non-binary. the current state of the law is unsatisfactory, and the state’s failure formally to recognise a significant demographic of its population in turn provides a licence for society at large not to “see” or respect them. It’s thought, for example, that employers are not required to understand their non-binary employees in the way they do their binary staff, leading to no such formal expectations on colleagues. This can result in non-binary people experiencing increased anxiety and vulnerability when entering the workplace, as well as when engaging with wider society.

Which discrimination laws might be relevant to non-binary people?

Discrimination can occur in various ways under the Equality Act 2010 (EqA). Most obviously, it includes “direct discrimination” - for example, treating someone badly because of their race, age or disability. “Harassment”, as defined in the EqA, is another form of discrimination which includes anything that creates an intimidating, hostile, degrading, humiliating or offensive environment.

For treatment to be discriminatory, it must relate to one of a fixed set of “protected characteristics”, the two most relevant here being sex and gender reassignment. How far could either of these protected characteristics provide legal protection against discrimination for non-binary people?

Sex discrimination

The EqA clearly defines sex as “a reference to a man or to a woman”, thereby excluding someone who does not identify as either male or female. So, at first glance, there appears to be no protection for non-binary people under sex discrimination legislation.

The definition of harassment under the EqA is, however, broad. It covers any unwanted behaviour which creates an intimidating, hostile, degrading, humiliating or offensive environment related to a protected characteristic. Someone does not need to have the relevant protected characteristic themselves for behaviour to constitute harassment - the behaviour just needs to be “related to” it. If for example an atheist is offended by a joke a colleague makes about religion, that could constitute harassment.

In a similar way, any discriminatory behaviour which is motivated by someone’s non-binary identity might be sufficiently “related to” the protected characteristic of sex for an Employment Tribunal (ET) to come to a finding of harassment, in that it would be related to them being neither a man nor a woman. There have not yet been any cases on this point, so far as we know.

Gender reassignment discrimination

Under section 7 of the EqA, a person has the protected characteristic of gender reassignment if they undergo any part of a process for the purpose of reassigning their sex by changing physiological or other attributes of sex (or if they propose to do so). There is no definition of what a “process” is in this context, nor what constitute “attributes of sex”.

Contrary to what is commonly thought, there is no requirement to undergo (or plan to undergo) any medical intervention. The clothes you wear, the pronouns you use, your name or your hairstyle could arguably be “attributes of sex”, so that changing them could bring you within the definition.

Accordingly, non-binary people may be able to claim to have the protected characteristic of gender reassignment provided they have taken steps towards “reassigning their sex” or propose to do so.

The scope of this protection is limited, however, and will exclude many non-binary people. For example, they may not feel the need to “transition” in the way the EqA prescribes, and not every non-binary individual may be comfortable using the legal language relating to gender reassignment.

Judicial guidance highlights equality law deficiencies

There is some interesting and useful judicial guidance in this area in the form of the Equal Treatment Bench Book, including the following extracts:

“The gender landscape is rapidly changing. …UK law has not yet caught up with these social changes, and presently makes express provision only for those who wish to reassign their sex.

“The limited protection of the [EqA], which only covers those who are undergoing or have undergone (or who are perceived to be undergoing or to have undergone) gender reassignment, means non-transitioning, non-binary or otherwise gender non-conforming people are particularly vulnerable.”

“There is a wide range of people who would describe themselves as trans or transgender, non-binary or gender fluid, but who have not undergone and do not propose to undergo gender reassignment. They would not have the protected characteristic of ‘gender reassignment’ and would not gain the protection under section 7 except perhaps on the basis that they were (wrongly) perceived as having undergone or proposing to undergo gender reassignment. The same might apply to people who cross-dress from time to time. It is arguable, though untested, that individuals in these categories could also claim sex discrimination.”

At the time of its drafting around a decade ago the EqA was a forward-thinking piece of legislation, yet it appears to be already showing its age. Arguably, certain categories of people it should seek to protect are falling through the gaps, with the inadequacy of the law as it stands creating uncertainty for everyone, including employers.

What should employers do now?

As discussed above, the legal position remains unclear at present and will remain this way until there are further developments in the courts and the potential reform of the GRA (and possibly the EqA too). In the meantime, there are various practical steps that employers can take to support employees of all genders:

• Simple steps like ensuring that employee records include diverse gender options - not just “male” or “female” - are a good start towards creating a more inclusive workplace.

• Pronouns: many employers encourage, but don’t require, employees to share their pronouns in email signatures. This helps to normalise the conversation around gender and discourage assumptions about colleagues’ identities.

• Internal policies should be worded considerately. For example, parental policies could refer to “employees on maternity leave” rather than “mothers”. Employers should carefully consider how to cover trans employees in relevant policies, specifically including non-binary employees.

• Dress-codes can be worded neutrally, rather than having separate codes for men and women. This may help avoid a host of issues, including not just the exclusion of non-binary employees but also potential claims of sex discrimination.

• Employers could also make a positive statement by marking days like Non-binary People’s Day (14 July), Trans Day of Visibility (31 March) and International Pronouns Day (21 October).

Hopefully the government’s response to the consultation on reform of the GRA will be published soon and provide a much-needed catalyst for an overdue overhaul of the laws protecting non-binary people.