Gender Reassignment Discrimination Case: The Impact of Lockwood v Cheshire and Wirral NHS Foundation Trust

The recent employment tribunal decision in Lockwood v Cheshire and Wirral NHS Foundation Trust has promoted important discussion around the scope of gender reassignment protections under the Equality Act 2010. This gender reassignment discrimination case highlights a legal gap affecting non-binary individuals and raises important considerations for UK employers.

This article looks at the legal framework around gender reassignment as a protected characteristic, as well as details of the case to ascertain whether non-binary identity is covered by gender reassignment protections.

What does the Equality Act Say about Gender Reassignment?

Under Section 7 of the Equality Act 2010, gender reassignment is a protected characteristic. This means individuals who are proposing, undergoing, or having undergone a process to reassign their sex from male to female or female to male are protected from direct and indirect discrimination, harassment and victimisation.

This law applies across all stages of a transition, and it is not dependent on medical intervention.

The wording in the statute reflects a binary understanding of sex and gender. This has led to uncertainty whether non-binary individuals fall within its scope. This question was considered in Lockwood.

The Facts of the Case

Haech Lockwood worked for the NHS trust as a therapist. They identified as non-binary and requested they/them pronouns, and a name change from Heather to Haech. Despite notifying the Trust in December 2022, IT systems and emails continued to display Lockwood’s previous name into 2023. Between October 2023 and January 2024, nine incidents of misgendering occurred in internal communications and official documents.

After each incident, an apology was offered and a corrective action made. However, Lockwood felt the apologies were insufficient and the response lacked a deep understanding of the distressed caused. Lockwood brought a case to the tribunal arguing these incidents amounted to harassment under Section 26 of the Equality Act.

Tribunal Decision

The tribunal dismissed Lockwood’s claim, it held that Lockwood did not meet the statutory definition of gender reassignment because they were not transitioning from one binary sex to another.

It concluded that:

• Identifying as non-binary without the intent to reassign sex falls outside of Section 7.
• The statutory meaning of “sex” and “gender reassignment” is binary.
• The tribunal also applied the Supreme Court’s ruling in For Women Scotland Ltd v Scottish Ministers that sex is a binary concept.

As a result, Lockwood’s harassment claim failed, as the alleged conduct was not related to a protected characteristic under the Act.

Implications for Employers

This ruling confirmed non-binary individuals who do not intend to transition between binary sexes are not protected under the gender reassignment provisions of the Equality Act. However, Lockwood does not set a precedent in law unless the decision is upheld on an appeal. An earlier employment tribunal decision, the 2020 case of Taylor v Jaguar Land Rover, involving a gender-fluid individual, found that non-binary individuals can fall under the protected characteristic of gender reassignment.

Whether non-binary individuals are protected under Section 7 of the Equality Act or not, employers cannot overlook inclusion in the workplace. Misgendering and deadnaming can still lead to claims under other grounds, such as constructive dismissal.

Best practices still remain essential; it is important for employers to:

• Update systems to reflect name and pronoun changes.
• Train staff on inclusive language and respectful communication.
• Respond to complaints in a sensitive manner and avoid dismissing concerns.
• Create an inclusive culture that goes beyond minimum legal compliance.

For further reading, you may find our guide to creating an LGBTQ+ inclusive workplace useful.

Respect and inclusion are vital for non-binary individuals

The Lockwood decision confirms that gender reassignment protections under the Equality Act could well remain confined to a binary framework. Even though this could limit protection for non-binary individuals, the duty on employers is clear to ensure respect and inclusion are vital in the workplace. Employers should continue to make proactive measure, such as adequate policies, training and system updates.

For questions and advice, don’t hesitate to get in touch, or visit our tribunal support service page to learn more about how AfterAthena supports employers in tribunals.