Employment Law And Non-binary People: What Employers Need To Know

Published date18 September 2020
Subject MatterEmployment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
Law Firmlus Laboris
AuthorMr Tom Heys, Zoe Ingenhaag and Anna Bond

In this article, we discuss the current position under the UK Gender Recognition Act 2004 and the Equality Act 2010 and suggest some practical steps employers can take to support employees of all genders.

Over the past decade, there has been a growing awareness that gender identity is not limited to the binary of male or female. Countries such as Canada, Australia, Germany, Nepal, the Netherlands and India already allow citizens to state a non-binary gender category on their passports. Facebook now has 71 different gender options.

The UK's Office for National Statistics is working on collecting official data but, according to estimates, 0.4% of the population could identify as non-binary. That's around 250,000 people in the UK today.

What being non-binary means

Non-binary is a gender identity, meaning someone does not experience gender exclusively as a male or female. The definition offered by the National Center for Transgender Equality, (see here) states that some people do not fit neatly into the categories of 'man' or 'woman', or 'male' or 'female'. For instance, some people have a gender that blends elements of being a woman or man, or one that is different than either male or female. Some people don't identify with any gender, while others' gender changes over time.

The NCTE definition adds that people whose gender is not male or female use different terms to describe themselves. In addition to 'non-binary', other terms include 'genderqueer', 'agender' and 'bigender', and there are many more. None of these terms have precisely the same meaning, 'but all speak to an experience of gender that is not simply male or female'. While non-binary people are generally regarded as being within the 'T' community of the LGBT+ acronym, some of them choose not to use 'transgender' as a descriptor because it has connotations with the binary model.

As one of the less well-understood communities under the LGBT+ umbrella, non-binary individuals may be particularly vulnerable to discrimination - including from within the LGBT+ community itself. According to Stonewall's LGBT in Britain Work Report in 2018 , see here, over a third of non-binary people (37%) were not out at work. By way of comparison, the report found that just 4% of lesbians and 7% of gay men were not out at work.

Gender Recognition Act and proposals for reform

In terms of relevant current legislation in this area, the Gender Recognition Act 2004 (GRA) enables transgender people to apply for a Gender Recognition...

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