Between the Binary... Are non-binary people adequately protected by UK law? by Lily Sear

"Hi! My name is Lily and I am an 18 year old A Level student from Northamptonshire. I am currently studying History, Sociology and Politics and hope to study law at university next year. I am particularly interested in Human Rights law, and the way in which this intersects with LGBTQ+ issues."

Liberal’, ‘tolerant’ and ‘progressive’ are all terms that most would associate with the British legal system. The most significant changes in pursuit of these factors have been made rather rapidly and recently, most notably through the Equality Act 2010. This combined previous ad hoc anti-discrimination laws, and combined them into one piece of more coherent and accessible legislation. The Act contains nine ‘protected characteristics’: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Workplace and wider social discrimination against an individual falling into any of these categories is now tackled with a much more efficient framework. However, the characteristic of ‘gender reassignment’ is the most important when exploring gender identity, and how non-binary citizens are protected, or not, by this legislation. 

In 2004, another significant piece of legislation came into force. The Gender Recognition Act gives ‘transsexual’ people the legal right to live in their acquired gender. The Equality Act now works in tandem with this, with the protected characteristic of gender reassignment protecting transgender people from discrimination. It is also necessary to note that despite the wording of the characteristic, an individual can be at any stage of the transition process, and does not have to have had any surgeries in order to be considered a valid candidate for protection from this kind of discrimination. The misleading wording of this, along with the inappropriate use of the word ‘transsexual’, which implies that an individual must have undergone or be undergoing medical treatment in order to be valid in their identity, begins to indicate how this legislation may already be outdated… 

As you may have realised, these laws mention nothing of alternative gender identities, existing beyond the binary. ‘Non-binary’ is an umbrella term that refers to a multitude of individuals’ gender identities that are neither male nor female. Though this concept has existed within many societies and cultures for centuries, for example the English Mollies, Italian Femminielli, and Roman eunuchs, all of whom seen as “other” from men and women. Perhaps the most significant example of this is the Hijra people of India. In 2014, India’s Supreme Court ruled that they would officially be recognised as a ‘third gender’, receiving the same civil rights as all other citizens. But the UK government has no plans to provide the legal recognition of the non-binary identity. In India, such identities are celebrated as a rich an important part of their culture, whereas in the UK, the lack of statutory protection makes non-binary people feel marginalised and ignored. This also raises whether non-binary people are protected from discrimination. 

Up until 2020, non-binary citizens had no legal protection from discrimination and were not considered under the gender reassignment protected characteristic of the Equality Act. However, the landmark case of Taylor v. Jaguar Land Rover Ltd altered this. In 2017, the claimant, Rose Taylor, an engineer for Jaguar Land Rover, came out as genderfluid/non-binary. She suffered harassment and discrimination, so much so that she resigned and issued claims in the Employment Tribunal (ET) of discrimination. Though Jaguar Land Rover Ltd, the respondent, argued that this claim was unsuccessful, as it did not fall under the protected characteristic of ‘gender reassignment’, the ET stated that Taylor did indeed have this characteristic, as she was undergoing the process of a transition regarding her gender identity. Thus, this landmark case set the precedent that non-binary/genderfluid people can fall under the protected characteristic of gender reassignment, and thus receive protection and legal compensation for discrimination. Though this development is incredibly significant, as non-binary citizens are now reassured of their place within the Equality Act and under the law in general, there are of course still a number of issues that need to be addressed in the near future. First and foremost, the government has not, and stated they will not, consider implementing the legal recognition of the non-binary identity. In 2018, a consultation on the Gender Recognition Act was published. However, the calls for non-binary identity to be included within the potential reforms were ignored. Now, the only safeguard against discrimination that non-binary people are able to rely on is one that has emerged through precedence. Though significant, this is unstable, and there is nothing on the statue book explicitly protecting the non-binary identity. This also speaks volumes about the government’s attitude towards this issue; it is clear it is not seen as a matter of urgency. 

Ultimately, it cannot be denied that UK law has come leaps and bounds regarding the protection of LGBTQ+ rights. However, non-binary people are being unjustly ignored. The ignorance surrounding their identity is staggering, and they are in need of legal safeguards against discrimination in the same way that transgender people are, but in a way that is explicit and affirming of their identity. 

Sources:

Government Equities Office and Equality and Human Rights Commission, 'Equality Act 2010: guidance' (GOV.UK, 27 February 2013) 

<https://www.gov.uk/guidance/equality-act-2010-guidance> Accessed 27 October 2021. 

Equality and Human Rights Commission, ‘Protected Characteristics’ (Equality and Human Rights Commission website, 6 July 2021) 

<https://www.equalityhumanrights.com/en/equality-act/protected-characteristics> Accessed 27 October 2021. 

Department of Health, ‘The Gender Recognition Act 2004’ (GOV.UK, 2004) <https://www.health-ni.gov.uk/articles/gender-recognition-act-2004> Accessed 27 October 2021. 

Equality and Human Rights Commission, ‘Gender reassignment discrimination’ (Equality and Human Rights Commission website, 15 May 2019) 

<https://www.equalityhumanrights.com/en/advice-and-guidance/gender-reassignment-discrimi nation> Accessed 27 October 2021.

The LGBTQ+ Experiment, ‘Why some consider “transsexual” outdated and offensive’ (LGBTQ+ Experiment website, 14 February 2019) 

<https://lgbtqexperiment.com/2019/02/14/whats-the-difference-between-transgender-and-tran ssexual/> Accessed 13 November 2021. 

National Center for Transgender Equality, ‘Understanding Non-Binary People: How to Be Respectful and Supportive’ (Transequality.org, 5 October 2018) 

<https://transequality.org/issues/resources/understanding-non-binary-people-how-to-be-respect ful-and-supportive> Accessed 27 October 2021. 

Vincent, B and Manzano, A, Genderqueer and Non-Binary Genders (Palgrave Macmillan, 2017) 11 

Khaleeli, H, Hijra: India’s third gender claims its place in law (The Guardian, 16 April 2014) <https://www.theguardian.com/society/2014/apr/16/india-third-gender-claims-place-in-law> Accessed 29 November 2021. 

Dazed, ‘The UK government won’t legally recognise non-binary as a gender identity’ (Dazed Digital, 25 May 2021) 

<https://www.dazeddigital.com/politics/article/52914/1/the-uk-government-will-not-legally-reco gnise-non-binary-as-a-gender-identity> Accessed 27 October 2021. 

Nelsons, ‘Gender Reassignment Discrimination - Non-Binary & Gender-Fluid Individuals’ (Nelsons Law, 3 December 2020) <https://www.nelsonslaw.co.uk/taylor-jaguar/> Accessed 27 October 2021. 

UK Parliament, ‘Gender recognition reform: consultation and outcome’ (House of Commons Library website, 10 December 2020) 

<https://commonslibrary.parliament.uk/research-briefings/cbp-9079/> Accessed 27 October 2021.