Do your recruitment and equal opportunities policies reflect our developing understanding of gender?

Our understanding and perceptions of gender and sex have evolved significantly in recent times.

The landmark case of Taylor v Jaguar Land Rover has now further developed our understanding of gender, and confirmed that those identifying as non-binary or gender fluid, have the protected characteristic of “gender reassignment” for the purposes of the Equality Act 2010 (EqA).

As with any protected characteristic, employers have an obligation to ensure that both their recruitment process and policies and procedures protect individuals from harassment and discrimination.

The Protected Characteristic

A person proposing to undergo, who is undergoing or who has undergone a process to “reassign” their gender, has the protected characteristic of gender reassignment under the EqA.

Important to note, is that a person does not have to seek medical intervention to be undergoing, or indeed proposing to undergo reassignment. While previously there has been a belief that the process is entirely medical, accompanied by a diagnosis and assessment by a medical professional, we have moved on since then.

Those who live their lives as the opposite gender with no medical or hormone treatment still benefit from the protection of gender reassignment and additionally, Taylor v Jaguar Land Rover has extended this protection to non-binary and gender fluid people.

Absence Protection

The EqA makes specific reference to provisions for absence where the absence is because of gender reassignment. “Because of” is not a clear term, however examples could include hormone treatment or counselling. 

Employers should be cautious in the way absences are recorded and consider whether any of these absences could give rise to consequences for poor attendance. The EqA makes it explicit that absence for gender reassignment should be treated as any other absence for medical, sickness or injury reasons, otherwise it could give rise to a discrimination claim.

Extra Protection

The Gender Recognition Act (GRA) allows those over 18 to gain a Gender Recognition Certificate to legally change their identity documents. The GRA then affords an extra protection to those holding a Certificate and an employer can be fined for disclosing that the individual has this Certificate. In addition, an employer cannot request the certificate for the purposes of employment, for example making the certificate a pre-requisite to changing the employee’s internal records.

Training and Policies

As with all protected characteristics, an employer has obligations to train their staff in equal opportunities and ensure staff and candidates are protected from discrimination. If you would like assistance ensuring your policies and procedures effectively protect your staff and candidates, or assistance in training your workforce, talk to our team of specialist employment lawyers and we will be happy to help.