Case update

Single-sex spaces and transgender rights

In a recent Employment Tribunal (ET) case, the ET upheld a claim brought by several employees against their employer for indirect discrimination and harassment in relation to a policy allowing a trans woman to use a female changing facility.

The case demonstrates the complexities for employers regarding how to approach single-sex spaces in the workplace and balance the competing interests of employees with different protected characteristics. Further below we explore some factors for employers to consider when seeking to balance these competing interests.

Background

Ms Hutchinson, together with several other nurses (the Claimants), worked in the Day Surgery Unit at Darlington Memorial Hospital, operated by County Durham NHS Foundation Trust (the Trust).

The Trust operated two policies relevant to this case:

  • a Uniform Policy requiring staff to change into and out of a work uniform at work; and
  • a Transitioning in the Workplace (TIW) Policy, which allowed transgender employees to use toilets and changing facilities aligned with their affirmed gender.

Under the TIW Policy, Rose Henderson, a trans woman, was permitted to use the female communal changing room shared by approximately 300 female staff. The changing room was an open space without individual changing cubicles.

In summer 2023, the Claimants raised concerns over sharing the changing room with a biological male. The Claimants argued that this situation violated their dignity and created a hostile and humiliating environment for them. These concerns were initially raised informally. In March 2024 the Claimants decided to raise a joint formal written complaint.

The Trust decided not to restrict Rose Henderson’s access to the changing room and provided the Claimants with temporary alternative facilities. The Claimants alleged that these were inadequate (due to insufficient size, lack of personal lockers and issues with fire safety compliance) and were only introduced after significant delay.

The Claimants therefore brought claims for:

  • indirect sex discrimination and harassment related to sex and/or gender reassignment, in relation to the Trust allowing Rose Henderson to use the changing room;
  • harassment, in relation to certain aspects of Rose Henderson's conduct inside and outside the changing room; and
  • victimisation, regarding the handling of their complaints.

ET decision

Indirect discrimination

The ET upheld the Claimants’ indirect discrimination claim.

The ET held that: the Trust gave access to single-sex changing rooms by Rose Henderson (a biological male trans woman) based on self-declared gender identity; and the Trust prioritised the perceived rights of Rose Henderson to use the changing room based on their self-declared gender identity over the rights of the Claimants to have use of a single sex facility (in accordance with the TIW policy).

The ET held that this put women at a particular disadvantage to men. The ET noted that the actual or potential presence of a biological male in a single-sex changing facility, a private and intimate space, would particularly adversely impact women by causing them fear, distress and/or humiliation.

Furthermore, the ET held that the TIW policy was not a proportionate means of achieving relevant legitimate aims, namely: balancing the competing rights of employees; respecting the gender identity of employees; and adhering to relevant legislation and guidance/advice in relation to the provision of single-sex facilities. In particular:

  • the number of transgender women who might seek to use the female changing room was extremely small (there was one biological male out of 300 users of the changing room);
  • no one spoke to Rose Henderson to seek their views, or ask if they were willing to use alternative facilities; and
  • the temporary solution was unsatisfactory and it would have been more reasonable to request that Rose Henderson use temporary facilities.

Harassment - claim against the Trust

The ET also upheld the complaints of harassment related to gender reassignment and/or sex against the Trust:

  • The Trust engaged in unwanted conduct relating to sex and gender reassignment by requiring the Claimants to share a changing room with a trans woman. This had the effect of violating their dignity and creating a hostile, humiliating and degrading environment for them.
  • The Trust engaged in unwanted conduct related to sex and gender reassignment by not taking seriously and declining to address the Claimants’ concerns regarding the part of the TIW Policy that afforded biological males access to the female changing room. This had the effect of creating a hostile and intimidating environment for the Claimants.

Victimisation

The ET dismissed the complaints of victimisation.

The ET held that the Claimants had engaged in three protected acts: (i) sending a letter of complaint expressing concern about the use of the women’s changing facilities by Rose Henderson; (ii) commencing legal proceedings; and (iii) speaking to the media about the TIW policy and the use of the female changing room by a trans woman.

However, the ET held that they had not suffered any detriment as a result of these protected acts. For example, the ET held that a letter sent to one of the Claimants concerning Rose Henderson’s grievance, which warned that action ‘may be’ taken under the employer’s disciplinary procedure should an investigation conclude that inappropriate action had taken place, was reasonable and good practice.

Key takeaways for employers

This case demonstrates the significant complexities for employers in balancing the interests of employees with different protected characteristics.

Following the Supreme Court’s decision in For Women Scotland v Scottish Ministers (2025), biological sex is the starting point for single-sex spaces. However, this does not create an absolute bar on trans individuals using facilities aligned with their gender identity.

Employers must balance competing protected characteristics and devise solutions that are proportionate, ensuring that such solutions go no further than is necessary to achieving legitimate aims (such as respecting the gender identity of employees).

For example, employers should consider the following factors when deciding whether to permit a trans woman to use a female changing room:

  • the availability and suitability of other facilities (inadequate alternative facilities may not be acceptable);
  • whether other staff have complained or expressed concern; and/or
  • the impact on privacy and dignity for all parties.

Furthermore, employers should engage meaningfully with employees who raise complaints (especially those with protected characteristics) and ensure that their concerns are sensitively and carefully addressed.

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