NHS Trans Policy Amounted to Sex Discrimination

The case has now been heard by the tribunal, which found that the policy of allowing trans colleagues to use their preferred spaces did discriminate against the nurses. 

 

What does it mean for trans-inclusion and single-sex spaces? 

 

 

For hygiene and infection control, uniformed staff were required to travel to work in their own clothes and change into uniforms at work, using a designated changing room. Under Health and Safety regulations, employers must provide changing facilities if special clothing is worn for work, and these must be separate for men and women. 

 

The Trust had provided male and female facilities but allowed trans staff to use whichever changing room they felt fitted their gender. There was only one changing room for each sex, meaning the claimants had no choice but to share with a biological male (Rose) who decided the female facilities best affirmed his gender. 

 

The tribunal referred to the Supreme Court ruling in For Women Scotland, that the words ‘men’ and ‘women’ in the Equality Act 2010 referred to biological sex, regardless of a person’s identity or gender recognition certificate. The tribunal held that the health and safety regulations in question must also be read as meaning biological sex. 

 

In keeping with the Supreme Court judgment, the tribunal reiterated that single-sex facilities must be provided based on biological sex, not gender identity. Once biological males are permitted use of those facilities, they are no longer single-sex. By allowing Rose to use the female changing room, the Trust breached the regulations and failed in their legal duties. 

 

 

The tribunal found that the Trust had harassed the nurses by requiring them to get changed in the presence of a biological male. 

 

Harassment is unwanted conduct, related to a protected characteristic, which had the effect of violating the dignity of the Claimants and creating a hostile, humiliating and degrading environment for them. The Trust violated the nurses dignity by failing to respect their “personal privacy” and “sense of dignity”. 

 

The respondent tried to argue that a policy could not be regarded as ‘conduct’, but the tribunal dismissed this. The existence of a policy itself was ‘conduct’ and, even so, the ratification and implementation of the policy would have amounted to conduct. As “sex and gender reassignment are at the very heart and centre of Rose’s choice to use the female changing room,” the conduct was clearly related to the protected characteristics of sex and gender reassignment. 

 

The tribunal felt that the distress caused to the claimants by the apprehension of a biological male seeing them undress was enough to constitute harassment. It was not dependent on how long each claimant was actually in the changing room with Rose. 

 

 

While the policy was applied equally to both male and female changing rooms, the tribunal accepted that it had a greater impact on female staff and was therefore indirectly discriminatory. 

 

The tribunal agreed that “as a general rule, considerably more women than men feel or would likely feel personal insecurity, distress and fear if required to change clothes in a communal changing room shared with a member of the opposite sex.” The tribunal accepted that women are more likely to have experienced sex-based harassment and violence than men, and that even those who hadn’t experienced it themselves would know the experience of other women, and so likely be affected by the risk. It was reasonable to experience concern even in the presence of a perfectly innocent man, and this was likely no matter how that male identified. 

 

The tribunal also accepted that different societal norms around modesty and objectification may impact women’s reactions. 

 

Considering whether the policy was proportionate to achieve a legitimate aim, the Tribunal accepted that the Trust did not set out to violate employees’ dignity, but had the legitimate provide a comfortable and supportive environment for trans employees. However, the tribunal felt the policy could not be proportionate when it was in breach of health and safety regulations and interfered with the claimants’ human right to privacy. If the Trust was looking for a proportionate solution, finding alternative facilities for Rose would have been more feasible. 

 

While indirect discrimination was relevant in this case, this does not undermine that men are also entitled to single-sex spaces in line with the Health and Safety Regulations and to avoid harassment based on sex and gender identity. 

 

 

The Trust did not initially take any action when the nurses first raised complaints. Following a written complaint in 2024, the Trust told the nurses that “the hospital supports their transgender colleague 150%” and that those complaining needed to be “educated” and “broaden their mindset”. The Trust finally provided an office to be used as a temporary locker room and alternative place to get changed, but this was not sufficiently private. 

 

The Trust’s failure to consider the nurses concerns constituted harassment based on sex and gender reassignment, as it created a hostile and intimidating environment for them. This failure was “driven by the attitudes towards gender reassignment and biological sex.” 

 

The tribunal expected that, had the trust taken the complaints seriously, it would have invited the nurses to meetings to discuss the issue, offered feedback and explained how to take their concerns further. Instead, they were told they simply had to accept the policy. The Trust eventually looked for alternative changing facilities for the claimants and investigated Rose’s individual behaviour but still did not consider reviewing its policy. 

 

The tribunal also noted that nobody asked Rose their views, or whether they would be willing to use alternative facilities, because the Trust had already reached its conclusion that the policy was correct. 

 

 

Gender reassignment is a protected characteristic and so treating people less favourably because of gender reassignment may be discriminatory. The Trust was right to be concerned about discriminating against Rose, and the tribunal accepted that it was a legitimate aim to provide a comfortable and supportive environment for trans employees. 

 

However, the tribunal found that the Trust had “prioritised the perceived rights of transgender staff over the rights of others such as the Claimants,” and had not attempted to balance any perceived competing rights “sensitively, or at all.” The tribunal described is as “a fallacy” that to respect Rose’s rights, Rose must be given access to the female changing room. It drew a distinction between protection from discrimination, harassment and victimisation, which the Equality Act provides, and a ‘positive right’ to use the opposite-sex changing room, which the act does not provide. 

 

This does not mean that Rose should have to use the male changing room, and the tribunal accepted that this would likely have breached Rose’s human right to privacy. But it was possible to provide Rose with adequate, dignified changing facilities that weren’t the female facilities. The tribunal noted that finding an alternative space for one trans employee would be easier than finding an alternative space for the “significantly larger number” of nurses who were uncomfortable. 

 

Further, excluding Rose from the female changing rooms was not based on gender identity, but sex (biologically male). Both men and women are excluded from opposite-sex facilities based on their sex, and so this was not less favourable treatment due to being male. 

 

 

The main takeaway for employers is that, as suggested by For Women Scotland, single-sex facilities must be provided on the basis of biological sex, not gender identity. Trans employees must still be accommodated with dignity, but a third space is the ideal solution. 

 

The existence of a policy itself is enough to be discriminatory, so do not wait for a dispute to arise. It is important that employers regularly review their policies to ensure they are lawful, especially after the law is updated or clarified. 

 

There is a fine balance to be struck between respecting employees’ rights and not prioritising them above others (no matter the specific protected characteristic). Employers should set aside their own personal beliefs and approach such disputes objectively. If in any doubt, it is sensible to seek legal advice. 

 

It is important to take all concerns and complaints seriously, and approach discussions with an open mind. Do not treat complaints simply as something to defend, as they may provide a legitimate chance to improve your practices.