UK: Discrimination: Non-binary

Authors: Frances Ross, Corinna Harris, and Charlotte Stern 

An Employment Tribunal has rejected a non‑binary employee’s harassment claims, finding that they did not meet the statutory definition of gender reassignment under the Equality Act.

Mx Lockwood joined the employer as Heather Lockwood and stated on their application that they were non‑binary. They later changed their name by deed poll to Haech and subsequently informed colleagues they identified as neither male nor female, wished to be known as Haech Lockwood, used they/ them pronouns and experienced gender dysphoria when referred to by their birth name. After repeated misgendering and use of their deadname, Mx Lockwood brought tribunal proceedings.

The Employment Tribunal assessed whether Mx Lockwood had the protected characteristic of gender reassignment under the Equality Act, which requires a person to be proposing to undergo, be undergoing, or having undergone, a process to reassign their sex. Drawing on the For Women Scotland decision which confirmed that “sex” refers to biological sex and is therefore binary, the Tribunal found that steps taken by Mx Lockwood (changing their name and pronouns) indicated movement away from their female sex towards a non‑binary gender identity, but not towards the male sex. As Mx Lockwood was not intending to transition from one sex to the other, they did not have the protected characteristic of gender reassignment.

The Tribunal noted that the decision in Taylor v Jaguar Land Rover – which treated gender‑fluid and non‑binary identities as coming within the protected characteristic of gender reassignment – was of limited assistance because it pre‑dated the For Women Scotland decision and focused on the concept of “proposing to undergo” transition.

Key Action Points for Human Resources and In-house Counsel:

This appears to be the first Tribunal decision on non-binary gender identity since the For Women Scotland decision.  As this is a first instance decision, it is not binding on other Tribunals.

The Tribunal found that although Mx Lockwood was distressed, the incidents were isolated, inadvertent and promptly remedied, and did not have the serious effect required to amount to harassment (violating their dignity or creating an intimidating, degrading or offensive environment for them). Indeed, the employer took swift corrective steps including apologies, IT system updates and transgender awareness training, and Mx Lockwood’s unwillingness to accept apologies or engage in mediation was relevant to the environment created.

Lockwood_v_Cheshire_and_Wirral_NHS_Foundation_Trust_and_others