Trust liable for discrimination after allowing trans woman to use female changing rooms

Recent case law has clarified how the Equality Act 2010 (EA 2010) applies to sex and gender reassignment in the workplace.

Following the Supreme Court decision in For Women Scotland, the legal definition of “sex” under the EA 2010 is biological sex. This means that, for EA 2010 purposes, a trans woman is legally male, and a trans man is legally female, regardless of whether they hold a Gender Recognition Certificate. Workplace protections relating to sex therefore apply on the basis of biological sex.

This issue was considered by an employment tribunal in Hutchinson and others v County Durham and Darlington NHS Foundation Trust. The Trust had a policy allowing employees to use single-sex changing rooms based on their self-declared gender identity. A trans woman employee used the female changing rooms, and several female colleagues raised concerns. The Trust refused to change its policy.

The tribunal found the Trust liable for both harassment and indirect sex discrimination.

The requirement for female employees to share changing facilities with a biological male, and the Trust’s failure to respond to their objections, amounted to harassment related to sex and gender reassignment. Importantly, employees do not need to share the protected characteristic themselves to bring a harassment claim – it is enough that the conduct relates to that characteristic.

The tribunal also found indirect sex discrimination. The Trust’s policy of allowing access to single-sex spaces based on gender identity, and prioritising those rights over the rights of women to single-sex facilities, placed women (who were considered more likely to experience distress, fear or humiliation when required to share communal changing facilities with a member of the opposite biological sex) at a particular disadvantage. The Trust could not justify this approach, and the discrimination claim succeeded.

Key takeaway for HR

Policies on single-sex spaces must be handled carefully. Allowing access based solely on gender identity, without balancing the rights of others, or considering alternative arrangements, can expose employers to significant legal risk.

About Jon Dunkley

Jon Dunkley is a Partner at Wollens and heads up the firm’s Regulatory Department. Based at our North Devon office, Jon is a highly experienced solicitor with a broad commercial and regulatory practice, supporting businesses, professionals and senior employees across a wide range of legal issues.

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