Tribunal adopts narrow approach to definition of gender reassignment

An employment tribunal has recently concluded that a non-binary claimant did not have the protected characteristic of gender-reassignment. This ruling contrasts with a 2020 judgment from a different tribunal panel (involving claimant RT) which reached the opposite conclusion.

One reason for the disparity between these decisions is Supreme Court’s decision in For Women Scotland, which was published in April 2025. As readers will be aware, it concluded that sex for the purposes of the Equality Act 2025 has to be understood as biological sex recorded at birth, whether or not the person in question has a gender recognition certificate.

The more recent of the two tribunal rulings addressing the definition of gender reassignment involved a claimant (HL) who was born female and who works for an NHS Trust. Two years or so after their employment started, they changed their first name to one that was not associated with either gender. Later on, arrangements were made for their preferred pronouns to be recorded as they/them. However they did not intend to take any steps to re-assign their sex from female to male.

The tribunal concluded that HL did not meet the definition of gender reassignment, since they were not “proposing to undergo…a process…for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. HL may have been adopting a new gender identity, but they were not proposing to change any female attributes to male, and so could not meet the requirements of the statutory definition. Given that For Women Scotland required sex to be interpreted as binary (ie male or female) for Equality Act purposes, there was no other way to read the definition, the tribunal thought.
In any event the tribunal went on to consider HL’s claim on the merits. It concluded that the incidents she complained off – chiefly unintentional “dead naming” and failing to use their preferred pronouns - did not, in the particular circumstances of this case, meet the statutory definition of harassment.

This decision is not binding on other employment tribunals. It will require a ruling from the Employment Appeal Tribunal for a definitive answer to the question of whether non-binary people can have the protected characteristic of gender re-assignment.

While the For Women Scotland decision clearly influenced the HL tribunal’s decision, it does not necessarily follow that it mandates a narrow interpretation of the definition of gender reassignment, rather than broader one favoured in the RT decision.

In the meantime, employers would be best advised to take all reasonable steps to prevent harassment of their staff, regardless of whether it clearly relates to a protected characteristic or the point could be debatable.