Non-binary identity does not give rise to the protected characteristic of gender reassignment

In the case of Lockwood v Cheshire and Wirral NHS Foundation Trust and Others [2025], the Employment Tribunal held that identifying as non-binary does not give rise to gender reassignment protection under the Equality Act 2010.

Facts

The claimant, Haech Lockwood, was born female. They commenced employment with the Trust in November 2021 using the name assigned to them at birth, Heather. On their application form, the Trust were informed that they identified as non-binary and used the pronouns: they/them.

In 2023, with the support of the claimant’s manager, an email was sent to colleagues within the psychological service informing them that the claimant wished to be known as Haech Lockwood, that they identified as Trans/gender fluid and did not identify as male or female, using their deadname caused gender dysmorphia, and their pronouns were: they/them. Following their change of name by deed poll, the claimant requested their name be changed on the Trust’s systems. This took several months to action due to the Trust deeming the request “low urgency”. Once it was considered to have been completed, the claimant’s deadname continued to show on Microsoft Teams, which resulted in a complete reboot of their laptop being required.

Before the reboot could be actioned, the claimant was absent from work due to stress and covid. During that time occupational health wrote to the claimant, addressing their correspondence to “Other Heather Lockwood”. The claimant alleged this caused distress.

The claimant raised an informal grievance, which was subsequently escalated to formal grievances. In addition to the incidents outlined above, the claimant complained that their deadname continued to appear on correspondence to patients, that they were repeatedly misgendered including, for example, by ICT when a service desk ticket was raised which referred to the claimant as “her” and at internal flu/covid vaccination clinics which referred to the claimant as “her”; and an occasion a colleague had failed to acknowledge them in a corridor when the claimant said “good morning”.

The claimant also complained that when a copy of their contract of employment had been requested, two had been provided. One which was in the claimant’s deadname, the original contract which had been signed, and the second in the name of Haech, which reflected a reduction in hours. The claimant complained the contract in the deadname caused them distress.

The claimant brought claims of harassment related to gender reassignment.

Decision

The Employment Tribunal held that the claimant did not have a protected characteristic of gender reassignment.

In reaching this decision the Employment Tribunal found that, whilst the claimant had changed their name by deed poll and lived under that name, and they had changed their preferred pronouns to: they/them, the claimant did not intend to take any other steps to change their sex, medical or otherwise.

The Supreme Court’s decision in the For Women Scotland case, emphasised that reference to “sex” meant biological sex. As such, sex was binary – male and female.

For the purposes of section 7 of the Equality Act 2010, a person has the protected characteristic if they propose to, are or have undergone a process whereby they propose to “reassign” their sex. The Employment Tribunal concluded this meant reassigning their sex to that of the opposite sex. Whilst the claimant had taken steps to change attributes of their sex, namely changing their name and preferred pronouns, these were viewed by the Tribunal as steps to move away from the female sex (i.e. non-binary) but not to move from one sex to another. The claimant was not proposing, nor intending, to take any steps to reassign their sex from female to male.

Learning Outcome

Whilst this is an employment tribunal decision, and is not therefore binding authority, it serves as a useful reminder that Tribunals will review the facts of each case and decisions are made on a case-by-case basis.

• Practically, it is also a useful reminder to businesses of the importance of ensuring inclusive workplace environments and, whether or not non-binary individuals are protected under section 7, misgendering and deadnaming can still give rise to other potential claims, such as constructive dismissal claims.
  

If you’d like advice tailored to your situation, contact Nicola Cockerill on 0800 915 7777 or email nc@kilgannonlaw.co.uk.