In recent years an alternative view on ‘gender’ has come into focus. With Generation Y being called the ‘gender fluid generation’ and more young people  identifying themselves as being neither male or female, is it about time employers and legislation got to grips with non-binary gender?

Many people now identify themselves as having a different gender to the traditional male and female, for example ‘agender’ and ‘bigender’, and some have multiple genders which fluctuate in intensity and change frequently. Over time, as society embraces this open approach to gender, the practical impact this may have in the workplace will become more evident.

What anti-discrimination protection is there then for gender fluid people in the workplace and what should an employer do if an employment issue arises because of a person’s genderflux or non-binary gender?

Discrimination Law

As the law stands under the Equality Act 2010 (Act) ‘sex’, ‘sexual orientation’ and ‘gender reassignment’ are protected characteristics, making it unlawful to discriminate against a person on these grounds. Yet gender identity does not necessarily denote sexuality and you cannot escape the binary nature of the language used in the Act:

• • ‘sex’ is defined as “a reference to a man or to a woman” and according to the Act’s Employment Statutory Code of Practice, “sex does not include gender reassignment … or sexual orientation”.

• ‘sexual orientation’ is defined as “a person’s sexual orientation towards (a) persons of the same sex; (b) persons of the opposite sex or (c) persons of either sex”, with the Code further categorising this as meaning “a person’s sexual orientation towards:

• persons of the same sex (that is, the person is a gay man or a lesbian);
• persons of the opposite sex (that is, the person is heterosexual); or
• persons of either sex (that is, the person is bisexual)”.

• ‘gender reassignment’ or ‘a transsexual person’ is defined as a person who “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”.

So, for example, an agender or genderfluid person who is not a transsexual and is being subjected to harassment in the workplace which relates to their changing non-binary gender identity, is there a level of anti-discriminatory protection to be had?

From a strict interpretation of the law it appears not as these alternative gender identities fall through the cracks in the legislative pavement.  It may be that when called upon the courts will take a purposive approach and interpret the Act in a way which may offer protection, as in the case of caste discrimination, but only time will tell.

In the meantime harassment and bullying is still a disciplinary offence under most disciplinary procedures whether it is unlawful or not. Further, in the spirit of inclusivity, employers should ensure that their staff are adequately trained on the changing face of equality and foster a respectful and mutually supportive working environment for people of all genders.

Gender Pay Gap Reporting

Whilst the new gender pay gap reporting regulation (The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017) is careful not to define gender and the accompanying Acas guidance (Managing Gender Pay Reporting) encourages employers to be sensitive to how an employee chooses to self-identify in terms of their gender and clarifies that the requirement to report gender pay should not result in employees being singled out and questioned about their gender, it does however confirm that in cases where an employee does not self-identify as either gender, an employer may simply omit that person from their calculations.

This approach just highlights the difficulties an agender or genderfluid person will have trying to claim equal pay – because different gender categories are seen as a square peg in a round hole.

If you are affected by issues touched upon in this article, or need advice on any other employment law matter, call our employment expert, Karen Bristow on 01256 305508.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.