Supporting non-binary colleagues: Businesses should be doing more

A 2020 ruling in an employment tribunal involving Jaguar Land Rover has acknowledged the recognition that non-binary identities fall within the gender reassignment wording as a protected characteristic under section 7 of the 2010 Equality Act. Legally the definition of gender reassignment does not require any medical intervention; as such, a change in clothes, hair, name or pronouns, i.e. “attributes of sex” brings non-binary identities within this definition under this ruling.

Whilst this is not an official legal precedent at the current time, it signals a change in the legal climate and looks to be influential in its claims. As such, engaged firms should lead by example and not wait for the legal apparatus to afford non-binary colleagues the same rights as others. This should include the right to be identified appropriately and to be able to safely use the appropriate bathroom and well-being facilities.

Terminology recap

Gender identity is somebody’s lived in personal experience of their own gender and how someone would describe themselves. This may relate to the sex assigned to them at birth but equally it may not. Gender is an individual’s relationship between their body, mind and wider society. It is important to remember that gender is not a choice, it is a core aspect of somebody’s identity, however the words they use to describe it may change with time given language can be limiting and is evolving every day.

Gender expression relates to how we communicate our gender to others, via our interactions, our clothes, our hair and our body language.

Gender congruence has emerged as a term for how comfortable we feel within our gender. For example, are we able to be our true selves and are we accepted for this?

Stonewall helpfully define the following terms:

Trans/Transgender – someone whose gender identity or gender expression is different from the gender that they were assigned at birth.

Cisgender – someone whose gender identity or gender expression matches the gender they were assigned at birth.

Non-binary – an umbrella term for people whose gender identity does not sit comfortably with “man” or “woman”. Non-binary identities are varied and can include people who identify with some aspects of binary identities, while others reject them entirely. Non-binary people can feel that their gender identity and gender experience involve being both a man and a woman, or that it is fluid, in between or completely outside of that binary.

https://www.stonewall.org.uk/help-advice/faqs-and-glossary/glossary-terms

What does this mean?

Most businesses state open support for non-binary communities via their Pride networks and DE&I work but many firms are not taking action to shift the dial to bring about essential change. There is no longer ambiguity on this matter and this is not a radical social change. Many cultures have a history of non-binary roles which reach back to antiquity. Now businesses must keep up with the social change shifts that have already taken place if they are to attract, retain and promote the precious top talent.

According to Stonewall statistics from 2018, 37% of non-binary colleagues do not feel comfortable coming out at work, versus 4% of lesbian colleagues and 7% of gay colleagues.

The UK National Statistics office reports that c. 0.4% of UK citizens are non-binary (c. 250,000) and yet there are still only two binary options on passports for “male and female”.

Limited passport options are just one example of a lack of support from the government and authorities and provides a license for society and for businesses to act as though non-binary citizens do not exist, and are not seen. If they are not seen, then they cannot be understood, accepted or respected in the workplace, in particular by people managers and co-workers, leading to workplace anxiety and isolation from wider society.

What can my business do to support our non-binary employees?

In 2020, Ms R Taylor successfully won an employment tribunal against Jaguar Land Rover after arguing she had suffered harassment and discrimination since she began openly identifying herself as gender fluid in 2017. Jaguar Land Rover attempted to argue that gender fluid or non-binary definitions did not fall under the 2010 Equality Act, however the tribunal panel understood that the government has referred to gender as a spectrum in previous discussions about the Equality Act and therefore ruled in favour of Ms R Taylor. This demonstrates that non-binary people can be protected by the Equality Act.

I strongly suggest that businesses use this recent employee tribunal finding as a catalyst to review policies, how they are applied and used within their business processes in order to drive the required changes.

To support you in this I would recommend prioritising the following items:

Monitoring

Capturing gender identity data is crucial in establishing a starting point or baseline to allow subsequent measuring of progress towards committed inclusion goals. Monitoring must be updated to allow capture of explicit options other than male, female or other, such as non-binary. Aim to collect pronouns where possible.

Pronouns, pronouns, pronouns

Although frequently unintentional, simply assuming a colleague’s gender or pronouns can be a risk and damaging for a variety of reasons: due to the notion that only two genders exist, that only one gender is able or qualified for a certain role or that a person is left feeling misunderstood and hurt and may feel disadvantaged. Assuming gender solely based on outward appearance also sends a message that one must look a certain way to reflect that gender.

Sharing pronouns and using gender inclusive language helps to demonstrate your commitment to Trans and Non-binary communities, and can help in avoiding innocent mistakes, such as misgendering someone. It can also help to reduce gender-based stereotyping. Read more here to learn why sharing pronouns is important.

All meetings could be established by pre-sharing the pronouns of attendees to help normalise this act for all colleagues and clients. In the same way that you might share a list of attendees, you could simply add known pronouns alongside these names (e.g. Lucy Smith, Consultant (she/her), John Smith, Project Manager (he/him)). All of your firm, including any acquisitions, should be empowered and encouraged to include pronouns within their email signatures. These should be built into standard template options.

Name:

Pronouns:

Job Title:

Office address:

Telephone number:

Please note this practice should not be compulsory; as we may not all feel safe and comfortable sharing our pronouns yet. Additionally, “preferred pronouns” has fast become an outdated term that signals that pronouns are a choice.

In the same way that someone can choose a nickname to be used within emails/IM/video conferencing software, this should also be afforded to colleagues that now use a different name, until such time that their email address can also be formally amended.

Pronouns could be built into our names such as Surname “Smith”, First name “Lucy (she/her)” so that even on IM/video nobody is accidentally misgendered or impacted.

If I cannot amend the name presented by the software I try to look for a work-around to share pronouns. Here I have written my pronouns into the notices bar which may usually contain out of office details or an alternative number.

If you cannot amend the name presented on any software look for a work around to share your pronouns. Here I have written my pronouns into the notices bar which may usually contain out of office details or an alternative number.

Explicit wording

Look to extend the protected characteristics you include in job adverts and policies to include gender identity/expression. Ideally acknowledge explicitly that this includes all gender identities such as non-binary, gender queer, gender fluid, trans, a-gender, bi-gender etc. Any examples of bullying within any anti-bullying policies should also be explicit such as using the wrong pronoun for an individual and all gendered terms should be removed from all policies.

Clear guidelines

Gender equality guidelines containing information about key legal protection, pronouns, dress code, terminology, use of facilities etc should be reviewed and updated/created to support non-binary colleagues.

Education

It feels obvious but I think it is worth affirming that comprehensive education and training on gender identity/expression, sexuality and sex and what it means should be provided to all colleagues and people managers. I strongly suggest this is mandated, refreshed annually and led from the HR team DE&I leader. This is often where employees feel most confused and need guidance and support to avoid making mistakes such as misgendering someone or confusing gender/sex with sexuality. As a business you should be sensitive to different gender identities and ensure that your employees use terminology appropriately, guided by any individuals concerned to make your workplace open and engaging and to protect your firm’s hard earned reputation.

Real estate decisions

All real estate decisions should include the implementation of gender neutral facilities as mandatory, in particular during periods of office refurbishment such as during the COVID-19 pandemic. If external landlords pose a problem to this, an initial response could be to acknowledge internally that one bathroom contains urinals, and one contains sanitary bins. Employees can then make their choice without fear or stigmatisation.

Supporting the Trans and Non-Binary communities within your workforce helps to reduce stigma and provides a safe space for employees to be themselves. This results in mutual benefits for employers and employees alike, including lower turnover, higher productivity and reduced absence.

Will you try any of these suggestions at your firm?