Help! Employee is Transitioning!

[SoManyQuestionsHere]

Reasonably new user name here, so: no NC - but please be understanding about me still having to keep this sort of vague. Also, full transparency, I'm asking around elsewhere, too, to hopefully get an opposite view point.

My employee is, apparently, non-binary and is looking to make some bold, public moves!

Hired in as "male, with a clearly male name and a physical appearance that, while clearly leaning towards androgyny, reads 'definitely male'".

Currently changing name (previously: "George" - obviously NOT the actual name) to something rather more neutral and unusual, along the lines of "Kimye" (equally obviously also not the real name - but: it's not obviously gendered and comes with, sorry - not meaning to sound prejudiced here, I'm genuinely trying to be as pragmatic as humanly possible - connotations that the general public would interpret as "most likely seen on Jeremy Kyle" as well as "they/them" pronouns).

I'm in professional services. A.k.a. "industry that has employees face clients directly". I'm also responsible for a client known for their pretty conservative social values (as a benchmark: earning their respect as a female executive has been an uphill battle for me!). And our employer is, basically, whatever Stonewall's board considers an "ideal case".

Genuinely out of my depth, here!

How would you approach? Given that a) I'm personally a GC but hardly radical (doesn't really matter, I'm a pro and my opinions come last!), that b) I do want to support my employees and don't, personally, see a major problem with "Kimye" doing their thing, internally, c) have a job, which boils down to "make money" and hence necessitates "do not alienate clients" (who WILL feel alienated!), and d) have woman employees whom I cherish, wish to retain and most definitely do not want to ask to share a hotel room with "Kimye" on the grounds that it's one of their more feminine leaning days unless they're 100% cool with it?

Yes, I've asked HR. Apparently, our best official guidance boils down to "play it by ear - we trust our executives!".

Man and woman are genders, sex is male or female.
So who gets to declare themselves beyond gender and invoke special protections in doing so?

@anaily

All non binary employees are fully protected under the equality act 2010, as well as all gender fluid identities, you can Google Taylor v Jaguar Land Rover for full details. They all fall under the protected characteristic of gender reassignment in the equality act 2010.

They are indeed and the comparator for determining discrimination is someone of the same sex who is not transitioning or non binary.

So long as they are treated the same way as someone who is the same sex as they are then the re is no claim under the equality act.

So I am not a woman , just female? I have been lied to all my life?

When did it change?

Why does gender ( which is pretty vague) get used more than the objective female /male terms?

There is a definition, it can be easily searched for on any search engine.
With you logic the Maya case didn't set any laws either then. Regardless of your personal opinion, non binary people are covered by the equality act.

Special treatment such as?

Did they block them for accessing all changing rooms or just the ones associated with thier sex? I am pretty sure you are not allowed gender separate changing rooms ( discrimination based on gender not likely to be a proprortionate solution to any problem I have encountered)

@Aquamarine1029

Seems to me you're looking for problems when none even exist yet. Work an actual problem, don't go in search for one.

Exactly. Honestly, OP, your posts seem overly-dramatic to me.

Just take it as it comes, I actually feel the response from senior management (trusting you) makes a lot of sense.

Regardless of your personal opinion, non binary people are covered by the equality act.
Government acts tend not to allow for personal interpretation, that's the whole point of them.
If it's actually written within the act in black and white, why don't you cut and paste it here? It must be simple enough for you, you've clearly read it closely to be so adamant on this point?

Regardless of your personal opinion, non binary people are covered by the equality act.

They aren't, it's a massive reach and it was not a precedent setting judgement. The male in the Jaguar Landrover case was clearly judged to be an MTF trans person. My bold:

At the end of Chapter 6 (Criminal Justice), the authors deal very briefly with searching under the Police and Criminal Evidence Act 1984. They quote from the Metropolitan Police Service’s “Transgender Policy” which purports to allow trans-identifying officers to conduct searches of suspects of the opposite sex, but notes that since non-binary identities are not covered under the Equality Act, officers and staff who identify as non-binary will not be permitted to search the opposite sex. The authors’ legal analysis of this policy is confined to the single sentence, “Authors’ note: the last answer may need to be revised in the light of Taylor v Jaguar Land Rover.”
This is inadequate. The policy quoted is unlawful insofar as it applies to intimate searches, since PACE s55(7) requires that “A constable may not carry out an intimate search of a person of the opposite sex.” The authors claim elsewhere in the book that, following Taylor v Jaguar Land Rover 130447/20188^, “those with more complex gender identities are now held to be within the protected characteristic of gender reassignment.” There are a number of problems with this statement. First, a decision of an employment tribunal has no weight as precedent, yet White and Newbegin treat Taylor as if it were a binding authority. Secondly, having decided to undergo a process of reassignment and announced that decision, Taylor undoubtedly had the protected characteristic of gender reassignment on a perfectly conventional understanding of s7; so even if the judgment were capable in principle of being binding, it would not have the effect claimed. (Readers wishing to gain a fuller understanding of Taylor are directed to Maya Forstater’s excellent blogg^ on the subject.) Third, and for the Criminal Justice chapter most pertinently, the fact that an individual has the protected characteristic of gender reassignment for the purposes of the EqA does not change their biological or legal sex. The authors do not explain how the EqA duty not to discriminate on grounds of gender reassignment could be thought to override the same-sex searching requirement in PACE.

From the Legal Feminist collective blog

legalfeminist.org.uk/2021/09/02/a-practical-guide/

Taylor v jaguar land rover case covers your point and shows its wrong, jaguar argued non binary was not covered by the equality act, they lost. Actual legal case studies prove you are wrong.
No where in the act does it say vegans are protected, but with case studies we can prove vegans are also protected even though they aren't mentioned.

My link addresses the Jaguar Land Rover case What part of it wasn't actually a binding decision, and the male in question was transitioning so already met the criteria, haven't you quite grasped?

Non binary gender identity was never intended to be covered by the Equality Act, this was a bone of contention in the Trans Equality Inquiry held by the Women and Equalities Committee in 2015. In their recommendations to the government they recommended expanding the criteria to cover non binary identity but this was refused.

Your linked opinion piece blog is wrong, jaguar lost, they did not win.

I didn't say they did win. This has no bearing on anything, because it isn't a binding decision, it's an employment tribunal. It would only be binding if it went to appeal, AFAIK

In 2020 a non binary person won a discrimination case covered under gender reassignment.

Who to give more weight to:

Feminist legal expert with an interest in these issues?

Random on MN?

It's a tough one.

Again, thanks all!

Reading along and taking it all in - still trying to come to a conclusion about "how to handle and how to be as gracious and fair to everone as humanly possible" here.

Questions such as "there's evidently room for interpretation on who is and isn't covered under the EA" are precisely where I'm struggling so very much!

Technically, I don't even care all that much. I really just want all of my employees - the non-binary one as well as the men and the women - to feel as happy and supported as can reasonably be expected (and then, hopefully, some - this being my personal committment to being "a good boss" to them). And for my employer to be reasonably satisfied with how much revenue I generate (because this is, literally!, what I'm paid to do).

I don't mean to sound deflated, and I so genuinely appreciate everyone who's shared their thoughts, it's just: I may be an executive. But, at the end of the day: I'm "just another employee", too! And "we're asking the impossible balance act" but the official answer being "we trust our executives" is just ...

NOT GOOD ENOUGH!

It is binding, if OP decides to discriminate against their employee, the employee would be covered under the equality act. I would highly recommend the employee keeps a record of anything just in case.

It's really unfair that you aren't getting more support with this, OP.

@anaily

It is binding, if OP decides to discriminate against their employee, the employee would be covered under the equality act. I would highly recommend the employee keeps a record of anything just in case.

Absolutely nothing has gotten through 🤦‍♀️

It is binding,

No, the Jaguar Land Rover employment tribunal was not binding on any other court's interpretation of the status of non binary gender identity in the Equality Act. I'll leave it there, I'm sure people can make up their own minds.

Absolutely nothing has gotten through

I was only doing it for the lurkers, to be honest.

Can you not just discuss it with your staff member, and see what challenges may arise? I honestly cannot see many, barring the hotel room sharing, which is poor practice regardless & anyway hardly a daily activity.

As any issues arise, you escalate them to your managers for guidance / support.

I don't know why it's all so problematic for you and why 'we trust you' isn't sufficient, at this stage.

My employee is, apparently, non-binary and is looking to make some bold, public moves!

It appears that the issue is one of palatability no? Hence the comment about Jeremy Kyle.

If an employee's personal style loses a firm clients, is that grounds for the employer to take some action?
I'd suggest most employers would like to believe that is the case but without (for example) a clear dress policy or appearance policy and clear breaches of set policy, I don't know how any action could be taken.
If this individual showed up to work with a full-face tattoo, as an extreme example, sacking them or asking them to work in a role that wasn't client-facing might seem obvious, but if there was no "no facial tattoos" policy then ultimately the company is relying on tribunals seeing their actions as reasonable.
Which they might do in the case of a full facial tattoo but might not in the case of blue hair and dangly earrings.

To be honest, hiring women has probably cost employers clients, hiring black people has probably cost employers clients, etc. To what extent a client's preferences in terms of who they interact with can be indulged depends on the impact on the employee and their rights. Some examples could include the rights of cabin crew to wear suitable uniform instead of dressing to impress male business travellers. Did airlines lose certain passengers when they allowed female cabin crew to wear trousers and flats? Almost certainly.

I'd suggest doing nothing, at all. If an issue of discrimination comes up, deal with it. What is more worrying is if it becomes apparent that this person is costing your business money, you might well get pressured to pressure them in turn to leave. That's when you're going to need advice.

Well in that case OP can freely discriminate against the non binary employee.