LGBTQ+ History Month: protecting LGBTQ+ rights in the workplace

In celebration of Pride History month, this article looks at how the development of LGBTQ+ rights in our recent history have shaped the rights that LGBTQ+ employees have in the workplace today. We also explore how employers can help to ensure these rights continue to be protected and developed.

LGBTQ+ history in the law: key developments

The Sexual Offences Act 1967 decriminalised sex between two men over 21 "in private" in England and Wales. Although by today’s standards the rights afforded by the Act are very limited, it reflected changing societal attitudes and the lobbying efforts of pro-LGBTQ+ groups and was a pivotal piece of legislation that paved the way for a legal system which protects gay rights in the workplace. 10 years later in 1977 the first gay and lesbian Trades Union Congress (TUC) held a conference to push for the protection of workplace rights.

In 1996 the landmark case of P vs S and Cornwall County Council was heard by the European Court of Justice where it was found that an employee had been dismissed after disclosing to her employers that she was undergoing gender reassignment surgery. The court ruled that protection from discrimination on the grounds of sex extended to discrimination arising from gender reassignment.

In 1999 the European Court of Human Rights unanimously ruled that the dismissal of four Royal Navy personnel because of their sexuality breached their Article 8 right to a private life under the European Convention on Human Rights. Following this landmark ruling, the ban on lesbian, gay and bisexual people serving in the Armed Forces was lifted by the Government and the Ministry of Defence later went on to apologise in 2007.

In 2002, the seminal case of Goodwin v United Kingdom addressed the right of post-operative trans people to receive legal documentation referring to their new gender, and led to the passing of the Gender Recognition Act in 2004. This act enables a person to change their legally recognised sex by obtaining a Gender Recognition Certificate.

In 2003 Section 28 of the Local Government Act 1988 was repealed in England and Wales. This lifted the prohibition on schools from “promoting homosexuality”. Sixteen years later, the Government published their RSE curriculum requiring the inclusion of LGBTQ+ content.

The culmination of campaigning efforts and these legal developments for the workplace came in the same year, when the Employment Equality (Sexual Orientation) Regulations 2003 were passed. This was the first piece of legislation which explicitly provided protection to employees from discrimination on the basis of their sexual orientation.

The 2003 Regulations were later superseded by the Equality Act (Sexual Orientation) Regulations 2007 and then the Equality Act 2010, which is still in force today. The Equality Act 2010 also provides protection from discrimination for other protected characteristics including those who have undergone gender reassignment. The recent case of Taylor v Jaguar Land Rover Ltd 2020 has potentially widened this protection further, as the Employment Tribunal ruled that it should include people who identify as non-binary and gender-fluid. (For a discussion of this case please see our blog, Gender identity in the workplace here).

Where we are now

The Equality Act 2010 is the key piece of legislation when it comes to LGBTQ+ rights in the workplace, schools and organisations who provide a service to the public, as it prevents discrimination, harassment and victimisation on the basis of sexual orientation or gender reassignment. Employers should ensure they have policies and training in place to protect the rights of their LGBTQ+ employees.

The recent case of Forstater v CGD Europe in 2021 has highlighted difficulties when rights afforded to protected characteristics by the Equality Act come into conflict. In this case religion / belief and gender reassignment were at odds when the Employment Appeal Tribunal found that a belief that biological sex cannot be changed meets the definition of a protected characteristic of a philosophical belief under the Equality Act. This has been met with criticism from LGBTQ+ campaigners and others who say that the ruling protects transphobia.

The situation raises many important and sensitive issues for employers to tackle when balancing conflicting protected characteristics in the workplace. It is not an easy area and the consequences of getting it wrong can be both financially and reputationally damaging (as the recent Employment Tribunal case of J Phoenix v The Open University illustrates). For guidance in this area, please see our previous blogs on the topic: Competing protected characteristics in the workplace: where to draw the line?, Can an employer dismiss an employee for expressing personal beliefs?, and Balancing conflicting protected characteristics: critical beliefs).

Schools should also be aware of the government’s draft guidance for schools (for consultation) on “gender-questioning children” published in December 2023, which has also been met by criticism from many within the LGBTQ+ community and the education sector. (Gender Questioning Children - non-statutory guidance (education.gov.uk); Gender Questioning Children - non-statutory guidance (education.gov.uk); EHRC Guidance on single sex service providers and transgender people.

Where is the law going?

Section 14 of the Equality Act 2010 provides for protection against combined discrimination or discrimination on the basis of dual characteristics but has not been implemented. Many in the employment law field have been calling for this provision to come into force in order to plug the perceived gap in the law for protection against intersectional discrimination. At present, an individual can bring claims for discrimination in respect of separate protected characteristics, but there is no avenue to bring a claim in relation to the unique discrimination that can result from the combination of two intersecting protected characteristics. For example, someone who is harassed at work because she is a gay woman would not be able to bring a claim for discrimination on the combined grounds of sex and sexual orientation, but instead would have to bring a claim for discrimination suffered because she is gay and separately for discrimination suffered because she is a woman. Labour has however recently announced its proposal to enact the right to claim dual discrimination if it wins the next general election. This could therefore be an issue on which we see change. 

In December 2022, the Gender Recognition Reform Bill passed in the Scottish Parliament. The purpose of the bill was to make it easier for trans people to change the legal sex on their official documentation, including removal of the requirement to obtain a medical diagnosis of gender dysphoria. However, this Bill never became law as the Secretary of State used their power under Section 35 of the Scotland Act 1998 to block this Bill from receiving royal assent. This was met with much criticism from the LGBTQ+ community and there are continuing efforts by campaign groups to bring this legislation into force in Scotland and around the rest of the UK.

What can employers do?

Looking back there is no doubt we have come a long way in the promotion and protection of LGBTQ+ rights in the workplace, but there is still a lot of work to be done. A recent study undertaken by Deloitte in 2023 indicates that only half of LGBTQ+ workers feel comfortable being out at work and 38 per cent of the respondents to the study said they experienced non-inclusive behaviours at work such as unwanted sexual comments and jokes at their expense.

There are many different steps employers can take to work towards removing these perceived barriers against inclusion and acceptance. Key to this is a healthy and safe workplace culture where discrimination in any form is not tolerated.

Clear and easily accessible policies on diversity and inclusion, and anti-bullying and harassment are fundamental to this endeavour as they send a message to staff that such values are a core priority of the business. Management should take care to make sure that what is on paper is put in practice at all levels of the business with processes being consistently followed and allegations of discrimination being taken seriously. 

Training for all staff on diversity and inclusion is another step employers can take to make LGBTQ+ employees feel safe and which also promotes active allyship in the rest of the staff body (see our article on Allyship in the workplace).

Finally, it goes without saying that employers should make clear that any discriminatory language will not be tolerated. To that end, employers should be careful about giving latitude to workplace “banter” which can often stray into discriminatory behaviour (see our article Banter, harassment and the Equality Act: an overview for employers).

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, February 2024