In the first instance Employment Tribunal decision of Lockwood v Cheshire & Wirral NHS FT, a non-binary claimant was unsuccessful in their claim for protection against gender reassignment discrimination under the Equality Act 2010.
The decision, published on 27 November 2025, was made on the basis that, following the Supreme Court decision in For Women Scotland v The Scottish Ministers 2025 (FWS), the protected characteristic of gender reassignment applies to those whose sex is reassigned. Sex, it concluded, is binary; and therefore ‘reassignment’ is either a change from male to female or vice versa.
Accordingly, non-binary (or gender fluid) identities are not protected characteristics under the gender reassignment umbrella of the Equality Act 2010.
Factual background
The claimant’s allegations of discrimination centred around incidents in work which followed their decision to transition from female to non-binary and to manifest this transition by adopting a non-gender specific first name (changed by deed poll) and use of neutral pronouns. The incidents included:
- The claimant’s previous female forename (known as their ‘deadname’) being generated in their outgoing post by one of the respondent’s IT systems. The tribunal found that the claimant had failed to notify IT that they used the outgoing post system when they were working with IT. When they had asked to have their identity changed on other internal systems, all of these were appropriately amended;
- Being misgendered by a nurse at the respondent’s internal staff covid / flu vaccination clinic and during a call to the IT help desk;
- Being provided with a copy of their original contract of employment, which contained their female deadname. The tribunal found that this historical document was legally correct at the time it was created and should not be altered after the fact; therefore the respondent’s policy and actions were correct in this regard;
- Being assigned a patient who had indicated they preferred a female therapist; it was found that the patient had indicated a therapist of any gender would be acceptable for the initial review appointment, which the claimant had been allocated to, but communication around this was adversely affected by the administration / booking team’s apprehension in communications with the claimant.
Noteworthy point
In deciding the claim was not successful, the tribunal had regard to previous cases. It noted that the EAT had stated in a 2013 case that ‘violating’ someone’s dignity is more serious or significant than offending or hurting it Betsi Cadwalader University Health Board v Hughes et al EAT 2013.
A different conclusion from past ‘gender fluid’ cases?
In concluding that gender reassignment protection is only afforded to those moving from one sex to another, and not those simply moving away from their birth sex, the Lockwood tribunal’s decision contradicts the conclusion of a previous first instance tribunal in Taylor v JLR 2018, which was decided before the Supreme Court’s FWS decision. In Taylor, the tribunal accepted that the ‘gender fluid’ claimant was ‘transitioning’ i.e travelling along a spectrum moving away from their sex at birth; and, crucially, concluded that that was sufficient to attract the protection of the gender reassignment provisions of the Equality Act.
The Lockwood tribunal focussed instead on the precise wording in the Equality Act, which refers to ‘reassignment’ which, it concluded denotes a move from one thing to another; and that, it said, aligns with the Supreme Court’s decision in FWS that the Equality Act’s reference to sex means ‘biological sex’, which is binary – either a woman or a man.
A final position?
It is not clear whether this decision will be appealed, but this is an area which is likely to see further litigation and, hopefully, more authoritative judicial consideration given the conflicting fist instance employment tribunal authorities mentioned above, in due course.
