UK: Single-Sex Toilets and Indirect Discrimination on Grounds of Sex as well as Religion
Authors: Charles Urquhart and Charlotte Stern
In the latest case on single-sex spaces, a female Muslim employee challenged NHS England on its policy of permitting access to toilets and changing rooms based on gender identity.
The claimant was a Muslim female NHS England employee who also suffered from PTSD linked to past male sexual violence and held gender‑critical beliefs. She challenged NHS England’s Trans Equality Policy and Procedure, which allowed trans employees to use single‑sex facilities (toilets and showers) corresponding to their gender identity. The claimant argued that this provision placed women, and particularly those with religious modesty concerns or trauma related to male violence, at a disadvantage and created an objectionable working environment. She brought claims for indirect discrimination in relation to sex, religious belief and disability as well as harassment.
The Employment Tribunal rejected her complaints related to her religious belief and disability but upheld her claim of indirect sex discrimination, finding that although NHS England had a legitimate aim (inclusion of trans employees), it failed to demonstrate that the policy was a proportionate means of achieving that aim. NHS England could not show sufficient balancing of the competing rights of women affected by the policy. The Tribunal also upheld the claimant’s harassment claims, concluding that whilst both (i) the operation of the policy (allowing access in practice) and (ii) the wording of the written procedure did not have the purpose of violating the claimant’s dignity or creating an offensive environment linked to her sex and gender‑critical beliefs, it did have that effect.
It’s worth noting that the Tribunal confirmed that in the Workplace (Health, Safety and Welfare) Regulations 1992 (which requires that separate rooms containing conveniences should be provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from inside) references to “men” and “women” referred to biological men and biological women.
Key Action Points for Human Resources and In-house Counsel
Employers should:
- Evaluate policies to ensure that they are balanced and proportionate and be aware that harassment can arise from the effect of a policy, even if the purpose was legitimate.
- Take concerns raised seriously and respond appropriately.
- Where possible, provide single-sex facilities alongside all-access facilities, to cater for all employees.
