The Equality Act 2010 legally protects people from workplace discrimination and in the provision of goods and services. It replaced more than 116 anti-discrimination laws, protecting: (i) age; (ii) disability; (iii) gender reassignment; (iv) marriage or civil partnership; (v) pregnancy and maternity; (vi) race; (vii) religion or ‘belief’; (viii) sex; and (ix) sexual orientation. The act has had a high-profile start to the decade. On 3 January, a preliminary hearing at an employment tribunal found ethical veganism to be a ‘protected characteristic’.
Ethical veganism
Ethical veganism is a belief that all forms of animal exploitation should be excluded from a person’s lifestyle. Jordi Casamitjana, an ethical vegan, brought a case against his former employer, the League Against Cruel Sports (LACS). Casamitjana had discovered that LACS’ pension fund invested in companies that harm animals, which goes against the principles of ethical veganism. Casamitjana alerted former colleagues to these investments, against LACS’ direct instructions. LACS subsequently dismissed Casamitjana for gross negligence. One of Casamitjana’s allegations against LACS was that he had been subject to workplace discrimination, of the types prohibited by the act. Although other elements of the case have not yet been decided, the judge found that ethical veganism should be protected. As a preliminary employment tribunal, the judgment is not binding on employers. However, it does give employers guidance on the likely treatment by the courts of ethical veganism as a protected characteristic.
For anti-discrimination laws to be fit for purpose they must walk a fine line between being robust enough to protect a community while also being flexible enough to adapt to shifting cultural norms. This judgment demonstrates that the act is versatile enough to protect communities other than those first contemplated by legislators 10 years ago. The downside is that the protection is reactionary and requires a community to suffer discrimination before it can be protected under the law via court proceedings.
Non-binary and intersex
While ethical veganism appears likely to be afforded protections under the act, being intersex or identifying as non-binary have not yet been recognised as protected characteristics. ‘Transgender’ is an umbrella term, describing those who need to present themselves in a gender other than the one they were assigned at birth. ‘Non-binary’ is another umbrella term for people whose gender identity does not fit neatly into the definition of ‘man’ or ‘woman’. ‘Intersex’ is a term used to describe people who have been born with both male and female biological characteristics. Intersex people may identify as male, female or non-binary. ‘Gender reassignment’ is the process of moving from one gender expression to another. The act replaced laws regarding gender reassignment and removed the requirement for gender reassignment to be a process undertaken ‘with medical supervision’ in order to be a protected characteristic. However, the provisions in the act explicitly relate to gender reassignment and ignore non-binary and intersex communities. This means that an employer may not be in breach of the act for discriminating against a person exclusively for being intersex or identifying as non-binary.
Those who have intersex conditions face different forms of discrimination from the transgender community, however few jurisdictions acknowledge that those with intersex conditions have different needs. A non-binary person may only be protected under the act if they can hook a discrimination claim on one of the nine protected characteristics mentioned. For example, a non-binary person could argue that they may in future undergo permanent gender reassignment, and thus fall within the act’s protection. This is an imperfect solution that requires non-binary people to categorise themselves in a way that might not reflect their identity. It also remains unclear how the intersex community would be protected under the act.
Next 10 years
The act has been a great step forward in the protection of vulnerable communities, but there is room for improvement.
The preferred outcome for the non-binary and intersex communities would be for the act to be amended to specifically include them. If the protected characteristic of ‘gender reassignment’ was amended to ‘gender identity’, this would incorporate the broader spectrum of the trans and non-binary communities. Under Jersey law, the protected characteristic of ‘sex’ specifically includes the intersex community. The act should be amended to include people born with intersex characteristics.
The act should be a last resort for the protection of vulnerable groups in the workplace. Rather than requiring non-binary and intersex communities to legally challenge discrimination before they are recognised as needing protection, employers should be proactive in adopting best practices to ensure that protection exists before the need for an employment tribunal. Organisations such as UNISON have already published information on intersex equality in the workplace.
Casamitjana’s employment tribunal highlighted the impact that visibility can have in accelerating progress for recognition of a community. One of the objectives of LGBT+ History Month is to raise visibility of issues affecting the LGBT+ community. Robust public discourse about the issues facing the non-binary and intersex communities will be essential to ensuring that these communities receive adequate protection from discrimination.
Netanya Clixby is writing in her capacity as a committee member of the Law Society’s LGBT+ Lawyers Division and co-chair of the London Bisexual Network
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