Single-sex facilities and use by trans employees in the workplace

Hutchinson and others v County Durham and Darlington NHS Foundation Trust 

It must be noted the judgment in the above case is a first instance decision and is therefore non-binding on other tribunals.

The claims in this case were brought by eight female employees of Darlington NHS Foundation Trust, which operated a policy whereby transitioning employees were able to use changing rooms in line with their self-declared gender identity.

The eight employees raised concerns regarding this, alleging that the policy amounted to discrimination against them. The Trust declined to amend the policy, and thereafter the claims were brought to Tribunal.

The Tribunal took into account the Supreme Court’s decision in For Women Scotland, and interpreted the Equality Act 2010 in light of this. For Women Scotland established that references to ‘sex’ meant biological sex.

The Tribunal followed this approach and found that allowing biological males to access female changing rooms amounted to unlawful harassment and indirect sex discrimination of the eight female claimants.

This Tribunal claim has brought a lot of attention in the media, not least because in Peggie v NHS Fife the Tribunal reached an opposing conclusion, considering the same principle i.e. whether trans employees can use their preferred facilities. In Peggie, it was ruled that it could in principle be lawful for a transwoman to use a female changing room.

What this means for you

Given the recent conflicting decisions, and until there is clarity from the Employment Appeal Tribunal, there is currently a lack of certainty in what the law requires in respect of changing rooms and other such facilities. The Peggie decision is being appealed, and it is likely that the Hutchison decision will be appealed also.

We will update you when there is more clarity on this point.