Employment law insights
Is being non-binary a protected characteristic?
It is unlawful for an employer to discriminate against a worker on the basis of their sex or gender reassignment, but is this enough to give protection to an employee who feels that they have been discriminated against on the basis of their “non-binary” gender identity?
The claimant in Lockwood v Cheshire & Wirral NHS Foundation and others identified as non-binary, preferred to be addressed by the pronouns “they” and “them” and had changed their name from a name associated with their female birth gender to Haech.
They, however, had no plans to transition to being a trans-man. They brought a tribunal claim complaining of staff misgendering them (referring to them as “her or “she”) and “deadnaming” them (using their former gender-identifying name).
Among other cases, the claimant relied on the 2018 decision of Taylor V JLR Limited in which a tribunal held “Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum”.
In a decision issued in late October 2025, the tribunal held that Haech Lockwood’s non-binary status did not amount to a protected characteristic. The tribunal considered “The word “reassigning” in our view means a move from one thing to another” and “It requires a from and a to. As sex is binary, that process has to be with the intention of changing from one sex to the other. In our view it is not sufficient for the claimant to be moving away from the female sex, to qualify for the protection within section 7, they need to have the purpose of reassigning their sex to that of the opposite sex.”
As with all judgments, employers should be wary of concluding that this represents a fixed and final determination on the topic. All cases are fact dependent and employment tribunal decisions are not binding on other tribunals - only decisions of appeal courts are binding.
Nevertheless, Lockwood is indicative of the direction of travel, particularly since the For Women Scotland decision, in which the Supreme Court confirmed that, at law, sex means biological sex and not someone’s gender identity.