An employment tribunal has recently considered whether a gender fluid/non-binary employee falls within the definition of gender reassignment in order to benefit from protection under the Equality Act 2010.

Taylor v Jaguar Land Rover ET1304471/2018

Facts

The claimant worked as an engineer for the company for almost 20 years. She began identifying as gender fluid/non-binary in 2017 and usually dressed in female clothing. She was subjected to insults and abusive jokes in the workplace and experienced problems in relation to the use of toilet facilities. She pursued claims of harassment, direct discrimination and victimisation on the ground of gender reassignment, in addition to claiming constructive unfair dismissal. Her employer resisted the claims on the grounds that she did not fall within the definition of gender reassignment under the Equality Act 2010.

Employment tribunal decision

The tribunal upheld the claims, finding that the claimant’s status as gender fluid/nonbinary fell within the definition of gender reassignment under the Equality Act 2010. With reference to comments recorded in Hansard during parliamentary debates on the Equality Bill in 2009, the tribunal considered gender to be a ‘spectrum’, with gender reassignment being a personal journey moving a gender identity away from birth sex. The tribunal held that it was beyond any doubt that the claimant was covered by the Equality Act 2010. At a subsequent remedies hearing earlier this month, the respondent agreed to pay the claimant £180,000 in compensation. In addition, the respondent consented to the appointment of a Diversity and Inclusion Champion and to the commissioning of a report by a recognised diversity organisation to investigate diversity and inclusion throughout the respondent’s business and setting out the necessary steps to becoming a “standard setting organisation” across all protected characteristics under the Equality Act 2010. An annual report into progress in achieving this will be produced for a period of five years.

Consequences

This is a first instance decision of the employment tribunal, meaning that it is not binding on other tribunals. However, it suggests that tribunals will be prepared to find that individuals with complex gender identities are protected under the Equality Act 2010 alongside those who elect to reassign their birth sex to a binary gender. The high level of compensation agreed by the respondent reflects the tribunal’s finding that aggravated damages were appropriate due to the egregious way the claimant had been treated and the insensitive stance taken by the respondent in defending the proceedings. Note, the tribunal’s full written reasons have not yet been published in this case.

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In more than 30 states, it is illegal for someone with HIV to have sex without first disclosing their status. Some are now pushing to change that, arguing that the laws are actually endangering public health.

More than 1 million people in the U.S. are living with HIV, and their HIV status could conceivably put them behind bars. That’s what happened to Michael Holder.

“I served 8 1/2 years in prison and three years after on parole,” Holder says.

Back in 2000, Holder’s ex-girlfriend testified that he didn’t disclose his HIV status before they had sex. That’s a crime in Michigan and in most states in the country.

He says the day after she said that, she came in and recanted.

“She testified the truth and said that she had lied and said that she was jealous, and she loved me and that I had told her just like I had testified and said I’d told her,” Holder says. “And she told the truth, but it was too late.”

Holder couldn’t prove that he told her. Public health experts say that’s one of many problems with HIV criminalization laws. Ohio, Tennessee and Florida are the top prosecutors, charging more than 120 people in the last decade.

“Would you want to have to disclose your sexual practices and your personal health in front of a medical professional and your partner?” asks Daphne Kackloudis, of the Ohio Health Modernization Movement. “I don’t think anyone wants to have that difficult conversation in front of a third party in order to prove that they’ve had the conversation.”

She’s part of a group of public health experts pushing to change Ohio’s 1999 statute.

“A lot has happened since 1999, and lawmakers don’t necessarily know that,” she says. “And let’s be honest. A lot of citizens, you know, who aren’t lawmakers don’t know the advances that have been made in science and the reasons that we believe this law should be modernized.”

Medical advancements have helped turn HIV from a fatal infection into a manageable chronic condition.

The Centers For Disease Control and Prevention recently announced that if people take antiretroviral drugs as prescribed, the amount of HIV in their blood can become undetectable. If it stays undetectable, they have little risk of passing the virus to a partner through sex, and can live long, healthy lives.

This past June, the American Medical Association called for the total repeal of HIV criminalization. That sparked action for reforms in Washington, Missouri, Georgia, Indiana, Tennessee and Florida.

“The data doesn’t support that any of these laws that criminalize HIV actually decrease transmission rates,” says Jada Hicks, with the New York-based Center for HIV Law and Policy.

In some places, the public health push has worked. California, Iowa and Michigan recently reformed their laws.

Ohio’s statute has been challenged multiple times since it was introduced. In a 2017 Ohio Supreme Court case, lawyer Samuel Peterson defended the law on behalf of the state.

“When you have sexual conduct, there are two parties to that conduct,” Peterson said in archival footage. “And the other person has a right to know and has a right to be party to the decision to engage in the sexual conduct.

Daphne Kackloudis says she understands that argument, but that’s only one part of the legal puzzle.

“We would never want someone who intentionally transmits HIV to not be able to be prosecuted under the statute. We think that’s not right,” she explains.

But she says, as it’s written, the law puts the burden on people like Michael Holder to prove that they disclosed.

She fears these laws, which intended to stop the spread of HIV, may actually be doing just the opposite, disincentivizing people to know their status in the first place.

“If they didn’t have the law, more people would come in and get tested, you know,” Holder says. “Because they wouldn’t have to risk having done to them what was done to me.”

According to the CDC, 1 in 7 people with HIV don’t even know they have the virus.

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