Over the last few years we’ve seen several employment tribunal cases relating to trans rights and women’s rights at work. These have mostly focused on individuals who were harassed or disciplined for their philosophical beliefs. But more recent cases concern the provision of single sex changing facilities. 
26 nurses in Darlington raised concerns with their employer about “intimidating” and “upsetting” behaviour of a transgender colleague (who was born male) in the female changing rooms. The nurses alleged their colleague was walking around in just underwear and “staring at and initiating conversations” with them as they changed, including asking one woman three times “Are you not getting changed yet?” One of the nurses was the victim of sexual abuse and says the presence of this trans colleague in an enclosed space triggers her PTSD
 
The Trust did not take any action when the concerns were first raised in 2023 but, following a written complaint in 2024, told the nurses that “the hospital supports their transgender colleague 150%” and that those complaining needed to be “educated” and “broaden their mindset”. They later cleared out an office to be used as a temporary locker room and alternative place to get changed, but the nurses say this room is not sufficiently private. It also falls under the same policy as the original changing rooms, meaning that the transgender nurse has the right to use it. 
 
The nurses are now bringing a tribunal claim against County Durham and Darlington Foundation Trust for sexual discrimination and sexual harassment. 
 
Meanwhile, another nurse is bringing a claim against NHS Fife for sexual harassment. Ms Peggie challenged a transgender doctor, who was born male, while using the women’s changing room. The doctor alleged that Ms Peggie’s behaviour was bullying, and she was suspended pending investigation. NHS Fife then tried to move Ms Peggie to work at a different hospital. 
 
 
What does the law say about single sex facilities? 
Much of the recent case law about single sex facilities focuses on toilets, but some of the concepts may apply to changing facilities. 
 
In Miller v Earl Shilton Town Council, “the risk of seeing a person of the opposite sex using toilet facilities” was considered one of “a series of detriments,” with the judge considering that “a woman being at risk of seeing a man using the urinals is obviously not the same as the risk of a man seeing another man using the urinals.”. The tribunal also pointed out that it did not matter that another woman was content with the arrangements “because the discriminatory impact was to be assessed from the perspective of the claimant.” 
 
In Abbas v ISS Facility Services, the company was found to have discriminated based on sex due to inadequate provision of female toilets. In the absence of female toilets, the claimant had to use the accessible toilet which had a faulty lock, could be opened from the outside, and was regularly used by men. The employers simply sellotaped a ‘Ladies’ sign to the door, which often fell off. It took three years from her initial complaint about the unhygienic conditions of the toilet before a working lock was fitted. 
 
The Health and Safety Executive states that employers must provide “somewhere to change if special clothing is worn for work” – as is the case for nurses. Employers must provide “separate [toilet and washing] facilities for men and women, except where each toilet is in a separate room lockable from the inside.” Allocation matters as the number of toilets required differs depending on whether they are solely for men or not. 
 
However, much of the debate comes from differing definitions of ‘man’ and ‘woman’, with some using a biological distinction and others basing this on gender and gender-recognition certificates. 
 
 
Discrimination 
Gender reassignment 
Gender reassignment is a protected characteristic and so treating people differently because of this may be discriminatory. Employers are allowed to prevent, limit or modify trans people’s access to a service, even if they have a gender recognition certificate. The organisation must show that this is a proportionate means of achieving a legitimate aim, such as safety, privacy or dignity. But they are not directly required to. However, EHRC guidance does say that employers should “consider the impact on and needs of all service users. Think about how your actions will affect both trans people and other service users.” One relevant example given is that “a gym has separate-sex communal changing rooms. There is concern about the safety and dignity of trans men changing in an open plan environment. The gym therefore decides to introduce an additional gender-neutral changing room with self-contained units.” 
 
Sex discrimination 
Usually, sex discrimination is shown by comparing the employee with a comparator of the opposite sex. If the policy of allowing transgender people to use the facilities aligned with their gender applies equally to both male and female rooms, could it still be sex discrimination? Due to the higher rates of male violence and sexual assaults against women, and the high proportion of women who have experienced sexual violence, it could be argued that the policy has a greater impact on women, posing a more significant risk to their safety and dignity. If this is accepted, the policy could be indirect sex discrimination. 
 
Disability discrimination 
One of the Darlington nurses was the victim of sexual abuse and says the presence of this trans colleague in an enclosed space triggers her PTSD. If this PTSD meets the threshold of being a disability, this raises the possibility of disability discrimination. The employer could consider reasonable adjustments, such as providing this nurse with a private space to change. As 1 in 4 women has experienced rape or sexual assault, all employers should be aware of the likelihood of having survivors in their workforce. 
 
Discrimination due to religion or belief 
One nurse said “We work with a whole load of international nurses, some of whom have different cultural and religious beliefs, who are only allowed to strip down in front of their husbands. They've found this extremely difficult.” If the policy impacts disproportionately on people with certain religious beliefs, it may be indirectly discriminative. 
 
 
Duty to prevent sexual harassment 
The Darlington case raises two separate issues regarding sexual harassment - the policy of allowing trans women to use the female changing rooms, and the individual’s alleged behaviour. 
 
The individual’s alleged behaviour 
The individual is alleged to have stared at colleagues, asked inappropriate questions and spent longer than necessary undressed. As unwanted conduct of a sexual nature, this behaviour (if proven) would be sexual harassment. When sexual harassment happens at work it is a form of discrimination and the employer may face a claim for vicarious liability
 
The sex of the people involved does not matter. No employees should sexually harass others, even of the same sex and with an undisputed right of access to the facilities. There would be no need to consider the fact that the individual was transgender. 
 
Employers should thoroughly investigate all allegations of harassment and, if proven, take disciplinary action. The EHRC has suggested that all employers should have a policy for dealing with allegations of sexual harassment and protecting staff during investigations. Otherwise, if a tribunal upholds the claim of sexual harassment, the employer could face additional penalties for failing to take reasonable steps to prevent harassment. 
 
The general policy 
The nurses have also raised more general concerns that the policy prevents them challenging males who enter the changing rooms. “There's been occasions where I've been in the changing room alone with this colleague who looks very masculine… you feel you want to challenge them, you think, 'Oh there's a man in the changing room' but you can't because of the trust's policy." 
 
The EHRC recommends that employers assess potential risks, engaging staff to help highlight problem area. For contentious issues like these, allowing for anonymous feedback may help you to get more responses, and a more honest range of opinions. In this case, employees had actively engaged with their employers and highlighted potential risks. 
 
Once a risk has been identified, employers must take steps to reduce this risk. A lot comes down to the interpretation of whether a step is ‘reasonable’. Providing a third gender neutral space is likely to be considered a reasonable step, as in the example used by the EHRC. However, employers are not currently required to take all reasonable steps (this could change under the Employment Rights Bill). If an employer takes other appropriate reasonable steps, they may be able to justify not taking this step. This is likely to depend upon the specific circumstances of any claim. 
 
 
It’s not just about the final decision 
It is important to listen to employees’ concerns and consider them. Even if you ultimately turn down their requests, you should be able to explain that decision and explain how you will address their concerns. Most importantly, the EHRC reminds that “when making and applying decisions, treat all individuals with dignity and respect.” You may have to make decisions that upset some individuals, but you can still show respect in the process of making and communicating those decisions. 
 
 
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