Could the absence of a gender identity be “gender reassignment” under the Equality Act 2010? – by Dr Mollie Gascoigne

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1. Introduction

This year marks the fifth anniversary of the Birmingham Employment Tribunal’s decision in Taylor v Jaguar Land Rover (“Taylor“), where Ms Taylor’s non-binary, gender fluid identity constituted “gender reassignment” and was therefore capable of protection under section 7(1) of the Equality Act 2010 (“section 7(1)“, the “Act“).

As a first instance decision, we are yet to have appellate authority for the general proposition that non-binary gender identities are capable of protection under section 7(1). Nevertheless, the judgment adopts a potentially broad and interesting reading of the Act, such that many more gender diverse people could be within the scope of protection if the reasoning is further adopted. Specifically in that judgment, the Tribunal judge (the “Judge“) conceptualised gender reassignment as reflecting a “spectrum” with two points at either end – points A and Z – with each respectively representing “biological sex”. The Judge concluded that it was “beyond any doubt” that somebody with a non-binary, gender fluid identity would be protected by the law “because they are on that spectrum”.

This article contends that, while Taylor is often welcomed as inclusive of all identities beyond men and women, gender reassignment is interpreted in a way which potentially (and perhaps unintentionally) risks excluding other groups within the gender diverse community. Agender people – those who experience a lack, or absence, of gender identity – ought to be capable of protection under section 7(1) and, it is argued, this requires the interpretation of gender reassignment as a move away from identification with the sex marker registered at birth, without stipulating the logistics of any such move, such as its existence on a spectrum. This is in accordance with both Parliament’s intention in enacting the Act as well as a rights-based interpretation of labour law to prevent and redress discrimination against minority gender diverse groups.

2. Gender reassignment and minority gender diverse groups

Under section 7 of the Act, legal personhood is assigned to the “transsexual” person who is “someone who has the protected characteristic of gender reassignment” (section 7(2)). In turn, a person with the protected characteristic of gender reassignment is a person who 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 (section 7(1)). In the field of work, such employees are protected against unlawful discrimination by virtue of sections 39 and 40.

It is well known among scholars and practitioners that the definition of gender reassignment under the Act is broad. This breadth was purposeful on Parliament’s part, reflecting that “gender reassignment […] is a personal process” and not contingent on someone having to do “something medical, let alone surgical, to fit the definition [of gender reassignment]” (Hansard, col 171). The departure from a medicalised conception of personhood (as it was under the Sex Discrimination Act 1975) is achieved in two ways. First, the definition does not require someone to have actually taken any steps or to have undergone any medical interventions to be capable of protection. This is reflected in the EHRC Code (the “Code“), which confirms that it is not necessary for an employee to have undergone any medical treatment; a proposal is sufficient (though it does not have to be medical treatment). This is the case even if the proposal is revoked. Second, the reference to “physiological or other attributes of sex” makes it clear that, for the purposes of defining reassignment under the Act, sex includes non-physiological features. Despite the Act’s expanded scope of protection compared with previous legislation, the status of non-binary and other minority gender diverse groups has remained uncertain, resulting in those groups vulnerable to a lack of protection or redress from discrimination.  

3. Gender diversity in the UK and the absence of a gender identity

Estimates of the UK transgender (trans) population generally range from 0.3 – 0.7% to 1% of the population, but the 2021 Census puts the estimate at around 0.5%. Despite being a very small proportion of the UK population, there is significant diversity of thought, experience and articulation of identity among gender diverse people. This is reflected in the literal number of terms used to describe different experiences and identities, but also in the varied testimonies of those who share the same identities.

Trans men and women are perhaps the most well-known trans/gender diverse populations, but just over half of trans people (52%) in the UK government’s 2018 nationwide LGBT+ survey identified as non-binary (i.e. not a man or a woman). This figure was described by the government at the time as “larger than we might have thought”.

Oftentimes, non-binary is seen as a “third” category of identity, such that the gender binary (men, women) is turned into a gender trinary (men, women and non-binary people). However, the diversity and nuance in the understanding of identity among gender diverse groups doesn’t always fit neatly into these categories, such as (for example) non-binary men/women and those who experience an absence of gender identity. The latter sometimes describe themselves as “agender,” connoting a lack or absence of gender, or of being genderless. These articulations matter in employment law practice because conceptualisations of one’s own gender will be relevant to evidence and witness testimony in determining the applicability of section 7(1), and it is within those borderlands of identity where Employment Tribunals may have to navigate increasingly in the coming years.

At this stage, it is worth distinguishing agender people who identify as such – the subject of this article – from others who do not consider themselves to have a gender or gender identity. The latter is commonly described among those with gender-critical beliefs. These beliefs are predicated on the view that sex is binary, biological and immutable, and the notion that people may have a gender identity distinct from the sex registered at birth is often problematised on that basis. It is well established that such people are capable of protection under section 10 of the Act (religion or belief) by virtue of those gender-critical views. In terms of the legal distinction between these groups under the Act (in light of the question this article seeks to address), in the context of section 7, those beliefs alone would clearly not constitute a “process” of “reassigning” sex such that the person could be considered a “transsexual person” under section 7. Moreover, motivation may also be a relevant factor in determining the applicability of section 7; the Code suggests protection extends to someone who is “driven by their gender identity” (in the context of a person who chooses to cross dress) (para 2.26). By extension, the motivation behind an absence of a gender identity (i.e. due to a lack of belief in gender) is likely to be relevant. As such, this blog post focuses on the extent to which agender people may be capable of protection under section 7(1), rather than other groups whose protection falls under section 10.  

4. Reimagining Taylor and the “spectrum”

There is no textual requirement for identification with a gender identity, rather it is the reassignment of sex which is the subject of protection under section 7(1). Despite this, there is frequent reference to gender identity in the context of section 7. Even in Parliament, enacting the legislation, it was said that “someone who has a gender-identity that is different from that expected from a person of their recorded natal sex is covered […]” (Hansard, col 172). Gender identity is sometimes perceived to be more inclusive terminology, but it is occasionally overlooked that this phrase may inadvertently create difficulties for those with an absence of gender identity seeking protection from discrimination under the Act. While there are compelling critiques of the language of gender reassignment, it does at least (on the face of it) centre on the reassignment, rather than identity. This is potentially broader in scope for the reasons outlined below. 

Despite the potential for a broad interpretation of gender reassignment, interpretations based on normative ideas of gender and gender diversity risk limiting the scope of protection for particularly vulnerable minority groups. It is argued that this can be observed in Taylor, where the Judge understood gender reassignment as existing on a spectrum:

We thought it was very clear that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum. (para 178)

That spectrum is said to have two opposite points – points A and Z – where “A and Z are biological sex”. Recognised on that spectrum would be people who described themselves as non-binary (not at point A or Z), gender fluid (between A and Z at different times) or transitioning (moving from A but not necessarily ending at Z). Consequently, protection is afforded to someone “because they are on that spectrum” (emphasis added).

The notion that gender reassignment exists on a spectrum, in the context of affording protection to non-binary people, does address the limitations of a strictly binary interpretation of gender reassignment where trans men or women (at whatever stage of their transition) are covered. The spectrum both extends protection to non-binary people (without necessarily relying on a “gender trinary”) and potentially covers non-static, gender fluid identities. However, the spectrum of gender reassignment articulated by the Judge, which relies on two poles at either end, leaves a question over those who experience a lack of gender identity such that they may not articulate their identity as existing on any such spectrum. Given that the spectrum is the basis upon which protection is afforded for the Judge, this would potentially leave those falling outside of that spectrum also falling outside the scope of protection under section 7(1) altogether. Of course, those groups would be protected from discrimination if they were incorrectly perceived to be undergoing gender reassignment, but the question is where there is no such perception because the individual’s agender identity is actually known, as in Taylor (though in the context of Ms Taylor’s non-binary, gender fluid identity).

The reference to a spectrum upon which protection is afforded was unnecessary, as the Judge could have understood section 7(1) as applying on the basis of moving away from the sex marker registered at birth without any further specification or conceptualisation. The move away from this marker could be towards another gender identity or away from any gender identification at all. This would be inclusive of agender people (in addition to non-binary and other minority gender groups) as it understands gender reassignment as a simple move away from one’s birth sex, broadly defined and without specifying that the movement away, or state, must operate on a particular basis (whether spectrum or otherwise).

This interpretation would also be consistent with Parliament’s intention where gender reassignment was said to represent “a personal move away from one’s birth sex, into a state of one’s choice […]” (col 168). If it is accepted that it is consistent with Parliament’s intention for non-binary people to attract protection under the Act (which itself is far from certain given the lack of appellate authority), then there appears to be no reason why Parliament would have intended some other particular gender diverse minority groups (such as agender people) to be excluded. The inclusion of agender people would therefore still be compatible with the purposive approach which found such favour in Taylor.

Moreover, there was even scope for this interpretation in parts of the Taylor judgment itself, where the Judge referred to “a journey which will not be the same in any two cases. It will end up where it does” (para 178). This specific passage, once it has been decoupled from the reference to a spectrum, leaves room for an interpretation which encompasses agender people and other gender diverse groups. With this slightly scaled-back reading of Taylor, there is accommodation of agender people “without any violence to the statutory language” (para 178).

The interpretation of section 7(1) to include the protection of agender people is also in accordance with a rights-based interpretation of labour law. In Goodwin, the European Court of Human Rights (the “ECtHR“) recognised Ms Goodwin’s gender as an “important aspect of personal identity” which engaged Article 8 (the right to respect for private and family life) of the European Convention on Human Rights (the “Convention“). As a result, the UK’s failure to provide a means for Ms Goodwin to change her legal sex status in line with her gender identity was a “serious interference with private life” (para 77). Article 8 encompasses a broad scope of protection, including workplace issues (Špadijer v Montenegro) and it is under this Article where notions of “quality of life take on significance” (Pretty). In conjunction with the prohibition of discrimination under Article 14, Article 8 could be engaged where agender people face discrimination based on their personal identity in the workplace.

In Elan-Cane in the Court of Appeal, it was noted that “there can be little more central to a citizen’s private life than gender, whatever that gender may or may not be”. The ECtHR in AP similarly described gender identity as “an essential aspect of individuals’ intimate identity, not to say their existence”. Article 8 therefore captures the significance of personal identity to an individual’s dignity which in turn is the very essence of the Convention (Pretty). In Goodwin, the ECtHR noted that Ms Goodwin’s personal development and autonomy (the latter being the “basis for the dignity of human nature” for Kant) and physical and moral security (encompassing both the internal and external aspects of dignity as articulated by Lady Hale) were both at stake. For agender people (as for many others), respect for personal identity and equality/freedom from discrimination based on that identity, is central to living in conditions of dignity and equal worth.

Nevertheless, the margin afforded under Article 8 in respect of gender diversity and personal identity is broad. For example, while states must provide some way to change legal sex status, other than that process being clear and accessible (X), and free from sterilisation requirements (AP), a number of other preconditions can be stipulated. This includes having to obtain a psychiatric diagnosis or undertake a medical examination (AP) or end/convert a marriage. In Hämäläinen, the ECtHR did note that where a particularly important facet of an individual’s existence or identity is at stake, the margin will be restricted. Even so, the Grand Chamber still held that a precondition to convert marriage into a registered partnership was within Finland’s margin of discretion due to the lack of European consensus on same-sex marriage and legal recognition. The Supreme Court in Elan-Cane similarly found that failing to provide a non-gendered marker on a passport engaged Article 8 but was not a violation.

The reasons for such a wide margin often involve a lack of European consensus as well as the extent of perceived disruption which may be caused by a particular ruling. The Supreme Court described perceived disruption in Elan-Cane, referencing the “complex issues with wide implications” involved. There are two counter arguments to a wide margin in respect of discrimination based on agender identity. First, while a lack of consensus sometimes justifies a wider margin, this isn’t determinative. In AP the ECtHR accepted that there was no European consensus on sterilisation requirements for legal recognition, but nevertheless found them to be unlawful. At the time, 22 out of 40 states providing legal recognition retained such a requirement, representing the majority position. Consequently, a lack of consensus may not be fatal, but the judicial approach to similar issues has certainly been restrictive. Secondly, in respect of disruptive implications for states, a certain degree of inconvenience may have to be accepted by the legal system, society at large and third parties where it “enable[s] […] fellow citizens to live in dignity and worth” (Goodwin). However, it is worth noting that this was said in the context of permitting citizens to change their legal sex status from one binary marker to another (both categories which already existed in law). Since then, when the Supreme Court was faced with the question of a third non-gendered passport marker (not previously recognised on UK passports), this was seen as having a potentially significant impact on law and administration. As such, courts and tribunals are perhaps much more likely to see the issue as within Parliament’s constitutional remit where it involves legal concepts or categories which are unfamiliar to the legal system. Nevertheless, in the context of interpreting the Act, a wider interpretation of section 7(1) arguably does not ask the same kind of questions of the state and legal system that non-binary or non-gendered recognition is often perceived to; the same structure remains in place but it is simply wider in scope.

Convention-compatible interpretations permit statutory interpretation beyond ordinary or even purposive approaches (which are themselves vulnerable to meaning becoming frozen in time). Section 7(1) cannot be interpreted in a way that alters the fundamental feature of the Act but a rights-compatible interpretation (in accordance with section 3 of the Human Rights Act 1998 (“HRA“)) permits departure from an unambiguous meaning or for a court or tribunal to read-in words that have been omitted by Parliament (Ghaidan). This recognises that the meaning of gender reassignment will continue to alter with time, and as such, statutory interpretation can extend beyond the normal canons of literal and purposive construction. Far from this, however, the interpretation of agender people within section 7(1) as described above is consistent with the fundamental character of the Act and does not require departure from an unambiguous meaning. Rather, where there is ambiguity (as, it is argued, there may be with the scope of gender reassignment), a tribunal is merely required to interpret in accordance with a rights-compatible reading which is within its constitutional boundary to do so. It is difficult to see how a broader scope of protection for people who are agender, gender diverse and/or otherwise gender non-conforming would be inconsistent with a fundamental feature of the Act or go beyond the judiciary’s constitutional boundaries. Rather, an interpretation which incorporates those sitting within and around the borderlands of identity – such as agender people – goes with the “grain” of the legislation (Ghaidan, per Lord Rodger of Earlsferry) to prevent the indignity of discrimination and provide redress for the same.

5. Concluding thoughts

In 2016, the Women and Equalities Committee noted that non-binary and other minority gender diverse groups could have “no certainty” of protection from discrimination. In a post-Taylor landscape, this remains the case; the proposition that non-binary people are protected from discrimination under section 7(1) remains untested in the appellate courts. This leaves non-binary and other minority gender diverse groups vulnerable. While recognising the promise of Taylor to extend protection under the Act, this article has problematised parts of the reasoning within that judgment with reference to agender identity. The connection between protection under section 7(1) and a spectrum of gender reassignment leaves a question mark over those groups who may fall outside of that conceptualisation.

To the extent that Parliament intended protection under section 7(1) to extend to those based on a personal move away from the sex marker registered at birth into a state of one’s choice, the inclusion of agender people would be consistent with a purposive interpretation. It is worth noting that, even if this broader interpretation of an unspecified move away was adopted, other conditions would still need to be satisfied by a claimant, including other definitional aspects of section 7 and evidential thresholds in witness testimony. However, to the extent that agender people would be capable of protection under section 7(1), this appears to go with the grain of the Act.

Moreover, a rights-compatible interpretation of labour law (using section 3 HRA) could justify the hinge for personhood under section 7(1) as being the unspecified move away from the sex marker registered at birth. Personal identity and gender potentially engage Article 8 (in conjunction with Article 14), such that the indignity of discrimination may be understood as a Convention-compatibility issue with respect to interpreting section 7(1). In practice, states have a broad margin of discretion in issues of gender. Even where there is a noteworthy development in rights standards (such as in Goodwin), this is frequently preceded by a long line of case law where the margin has gradually narrowed over time (Rees; Cossey; X, Y and Z; Sheffield and Horsham). This makes the viability of an interpretation based on rights-compatibility potentially limited, while the purposive approach may be more likely to find favour in the meantime (as in Taylor).

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(Suggested citation: Dr Mollie Gascoigne, ‘Could the absence of a gender identity be “gender reassignment” under the Equality Act 2010?’ UK Labour Law Blog, 31 March 2025 available at https://uklabourlawblog.com/)