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Non-binary employee does not have protected characteristic of gender reassignment – Haech Lockwood v Cheshire and Wirral NHS Foundation Trust & Others

12 Dec 2025 | 4 minute read

Introduction

The Employment Tribunal recently considered whether a non-binary employee could rely on the protected characteristic of gender reassignment under section 7 of the Equality Act 2010 ("section 7") and whether repeated incidents of misgendering (referring to a person other than in accordance with their gender) and deadnaming (using a trans or non-binary person's birth name or former name) amounted to unlawful harassment.

The Tribunal held that the non-binary employee did not have the protected characteristic of gender reassignment because section 7 (which defines gender reassignment) requires a binary journey from male to female, or female to male. This is significant because it is one of the first Employment Tribunal decisions to explicitly rely on the Supreme Court’s ruling in For Women Scotland v Scottish Ministers when interpreting section 7.

This was a first instance and non-binding decision so future cases may reach a different conclusion on similar facts, but it suggests that the scope of gender reassignment protection may have been narrowed following the Supreme Court's landmark judgment compared to former cases of Taylor v JLR and R(AA) v NHS England which, albeit on different facts, considered non-binary identities to be within the scope of section 7.

Factual background

The claimant, Haech Lockwood ("HL"), identifies as non-binary and uses they/them pronouns. They changed their name by deed poll in January 2022 and notified their employer of the change. Despite steps taken by their employer to update systems and provide training, HL alleged a series of incidents between October 2023 and January 2024, including misgendering by ICT and a therapist, their deadname appearing on internal systems and in a historic employment contract, misgendering at a vaccination clinic and allocation of a patient who had requested a female therapist. HL argued these incidents created an offensive and hostile environment contrary to the Equality Act 2010.

The Tribunal’s decision

The protected characteristic of gender reassignment.

While acknowledging that HL had taken steps to move away from their birth sex (such as changing their name and pronouns), the Tribunal concluded these were not “for the purpose of reassigning their sex” within section 7.

The Tribunal anchored its reasoning in the For Women Scotland judgement to find that sex under the Equality Act is binary and biological (male or female), and therefore the phrase “for the purpose of reassigning sex” in section 7 requires a “from/to” journey between those two sexes, not simply moving away from birth sex toward a non-binary identity. HL had no intention to transition from female to male and therefore fell outside the statutory definition.

The Tribunal’s interpretation of section 7 is notably limited, reducing “gender reassignment” to a binary journey from one sex to the other, leaving non-binary individuals outside the statutory definition. This appears to narrow the scope of gender reassignment protection compared to earlier cases which adopted a broader interpretation allowing non-binary identities within section 7. In Taylor v JLR, a Tribunal previously held that gender reassignment protection covers a “spectrum moving away from birth sex,” including non-binary and gender-fluid identities. Similarly, in R(AA) v NHS England, the High Court had endorsed Taylor’s approach, confirming that protection applies where an individual has taken a “settled decision to adopt some aspect of the identity of a gender different from that assigned at birth”. In both of these earlier cases, it was decided that there is no requirement for plans to physically transition in order to meet the protected characteristic of gender reassignment.

The approach in this case also contrasts with the EHRC Code of Practice on Employment (which is being updated following For Women Scotland) which currently says that “gender reassignment” is a "personal process, that is moving away from one’s birth sex to the preferred gender, rather than a medical process". The Tribunal's approach also raises questions as to the statutory language that expressly includes a “process or part of a process” and changes to “other attributes of sex,” which I have previously pointed out can encompass non-medical, social steps such as adopting a non-binary identity or rejecting gender altogether.

Harassment claims

The Tribunal dismissed all claims; not only on the basis that HL lacked the protect characteristic but so because the unwanted conduct did not have the required purpose or reasonable effect of violating HL's dignity or creating an intimidating, hostile, degrading or offensive environment for HL. While HL was understandably distressed by the incidents, the Tribunal emphasised that “violating dignity” is a strong term and that the effect must be serious and marked.

Various factors influenced this decision but included the fact that incidents were isolated and largely inadvertent rather than deliberate and malicious. HL accepted that none of the individuals involved acted intentionally to cause harm. The Tribunal also acknowledged that each incident was followed by prompt apologies and remedial steps and that the overall tone of correspondence was apologetic and understanding. In addition to immediate apologies, remedial steps taken included system updates and workarounds such as notes on service tickets being added to reflect pronouns, changes being made to internal systems and exploring the addition of pronoun fields to databases. Additional transgender awareness training was also delivered to staff and managers. Finally, the Tribunal considered HL's own conduct and "unforgiving" approach - such as refusing to engage in mediation and refusing to accept genuine and heartfelt apologies - contributed to the environment.

Practical implications for employers

While this is a first instance decision in an area which is frequently evolving, there are still useful and insightful points for employers to take from this judgment:

In this case, ICT systems could not store pronouns because national NHS databases lacked a pronoun field. Nevertheless, workarounds were introduced such as adding pronouns to service tickets and exploring database changes. The Tribunal considered that the employer took extensive steps and demonstrated a genuine willingness and desire to embrace trans and non-binary employees. For employers, even where systems might be limited, try to find interim solutions and communicate those limitations clearly to staff to manage expectations.

The employer had mandatory equality, diversity and inclusion training but optional transgender awareness training was missed by ICT staff due to workload pressures. Additional sessions and Rainbow Badge training were then later arranged. Optional training may not always be enough – consider prioritising targeted sessions for those teams interacting with diverse colleagues and, where possible, release their time for attendance.

We offer Gender Diversity Training and Managing Conflicting Beliefs Training. Reach out to Mollie Gascoigne today for further information.

In this case, every misgendering or deadnaming incident was followed by prompt apologies and corrective action and the Tribunal noted the employer offered mediation, which HL refused. As an employer, encourage open dialogue and mediation early to prevent escalation of conflict and tension. Document apologies and remedial steps taken.

HL was distressed when sent a historic contract in their deadname but the Tribunal accepted this was unavoidable under document retention rules. Explain retention policies upfront and consider adding guidance for handling historic documents sensitively.

Non-binary status does not automatically confer gender reassignment protection. Employers should understand the statutory definition under section 7 and monitor developments, particularly any updates to the EHRC Code of Practice. As this area is legally unsettled and evolving, it is important to keep policies under regular review and obtain specialist legal advice. And still handle all concerns raised by non-binary staff in a sensitive way; another Tribunal may decide the matter differently and, in any event, you still want your employees to feel valued and supported.

Concluding thoughts

This is a first instance decision, and its interpretation of section 7 creates uncertainty in an area already marked by legal and social complexity. Previous cases adopted a broader approach and the EHRC Code of Practice is under review following For Women Scotland. These cases sit against this backdrop of uncertainty, highly polarised views and deeply held beliefs (see our analysis of Higgs and conflicting beliefs in charities), making workplace management challenging. It is more important than ever to proactively review policies and procedures and get in touch for specialist advice and support to navigate these complex issues.