UK: Discrimination: Sex and Gender Reassignment
Authors: Frances Ross, Corinna Harris, and Charlotte Stern
Following the UK Supreme Court’s decision in For Women Scotland Ltd v The Scottish Ministers, which ruled that “sex” in the Equality Act must be interpreted as biological sex, recent Employment Tribunal cases have considered the issue of trans women’s access to female toilets and changing rooms.
Peggie v Fife Health Board: Ms Peggie, a nurse, with gender‑critical beliefs, objected to a transgender doctor’s use of the female changing room. She believes biological sex is immutable and reported her concerns. The hospital maintained that the doctor was entitled to use the facility and advised Ms Peggie to use an alternative changing area. After a confrontation between the two, the doctor complained of bullying and harassment, and Ms Peggie was placed on special leave.
An Employment Tribunal partly upheld Ms Peggie’s harassment claim. It found that the employer harassed her by failing to suspend the doctor’s permission to use the female changing room following her complaint, at least until new rotas could separate the two. Three further allegations of harassment relating to the employer’s investigation process were also upheld.
Importantly, the Tribunal held that the For Women Scotland case did not make it inherently unlawful for a trans woman to be permitted to use female workplace facilities. However, gender reassignment protection does not automatically justify access in all circumstances. The Tribunal held that employers should apply a proportionality test when making decisions on single‑sex spaces. While initial permission for the doctor to use the room was lawful, once Ms Peggie objected this should have been revoked on an interim basis.
Kelly v Leonardo UK Ltd: Ms Kelly, an engineer, challenged her employer’s toilet access policy, which allowed trans staff to use facilities aligned with their gender identity. She argued that this disadvantaged women and created safety issues. Her grievance and appeal were rejected.
The Employment Tribunal accepted that the policy amounted to unwanted conduct related to sex, but it did not violate her dignity or create a hostile environment – she had continued to use the female toilets without issue. Her direct discrimination claim failed because men and women were treated equally. Her indirect discrimination claim also failed: the policy did not put women at a particular disadvantage in terms of privacy, safety or increased risk – and even if any disadvantage existed, this would have been minor and objectively justified by the employer’s aims of lawful treatment of trans employees and fostering an inclusive workplace.
Bethany Hutchison & Others v County Durham and Darlington NHS Foundation Trust: The Trust does not permit staff to wear mandated uniform to and from work. Eight female employees brought claims after the Trust allowed a trans woman to use the female changing rooms in accordance with its policy which permits transgender staff to use the changing room of their choice.
The Tribunal found that requiring the claimants to share female changing facilities with a trans woman and failing to act on their objections to the Trust’s policy created a hostile, humiliating and degrading environment for them and amounted to harassment related to both sex and gender reassignment.
Indirect discrimination is when a working practice, policy or rule (referred to as a PCP) is the same for everyone but has a worse effect on someone because of a ‘protected characteristic’. The Tribunal identified two PCPs:
- Allowing access to single‑sex spaces based on self‑declared gender identity
- Prioritising the perceived rights of transgender employees to use facilities based on their self-declared gender identity over the rights of other staff to use single‑sex facilities
Although these PCPs applied to all staff, they placed women at a particular disadvantage as they were more likely to experience fear, distress and/or humiliation by having to share a changing room with someone of the opposite sex. The Tribunal found that the Trust failed to justify these PCPs and the indirect discrimination claim succeeded.
Key Action Points for Human Resources and In-house Counsel:
These decisions are first instance and are not binding on other Tribunals. The approach taken by the Tribunals in these cases has not been consistent, and until we have an appeal decision, employers are advised to respond sympathetically and promptly to issues raised by employees in relation to the use of female facilities and to arrange for women to have access to appropriate single-sex facilities.
The Government is currently considering the EHRC’s updated guidance on the implications of For Women Scotland, including how single sex spaces should operate – though this will not directly apply to private employers that do not provide services to the public.
