Summary: Should employers allow trans employees to use single sex spaces based on their gender identity, rather than based on their biological sex?

No, says the Tribunal in Hutchinson and others v County Durham and Darlington NHS Foundation Trust.

Background: The Supreme Court’s judgment in For Women Scotland established that a ‘man’ under Equality Act 2010 (EA 2010) is a biological man and a ‘woman’ is a biological woman. A trans man (with or without a gender reassignment certificate (GRC)) remains a ‘woman’ under EA 2010 and a trans woman (with or without a GRC) remains a ‘man’ under EA 2010. This meant that all of the protections and rules set out in EA 2010 applied based on the biological sex of the individual.

Facts: The employer, County Durham and Darlington NHS Trust, operated a policy (‘Transitioning in the Workplace’) permitting transitioning employees to use single-sex spaces, such as changing rooms, in line with their self-declared gender identity rather than their biological sex.

A trans woman employed by the Trust began using the female changing rooms. Ms Hutchinson and several other female employees who also used those facilities raised concerns. The Trust quoted its policy in response to the complaints and did not adequately address these. It instead criticised the employees, who were told they needed to be educated on trans rights and to broaden their mindsets.

The employees brought discrimination claims including:

· Sex-related harassment and harassment on grounds of gender reassignment; and

· Indirect discrimination on grounds of sex.

Tribunal decision:

Applying For Women Scotland, the Tribunal held:

· Requiring the female employees to share a changing room with a biological male trans woman; failing to address their objections to this; and instead continuing to permit biological males to access female changing rooms, amounted to harassment related to both sex and gender reassignment. It did not matter that none of the female colleagues had the protected characteristic of gender reassignment themselves. Harassment claims only require that the conduct relates to a protected characteristic, not that the victim actually has the relevant characteristic.

· In relation to indirect sex discrimination, the legal test is whether the employer operated a ‘provision, criterion or practice’ (PCP) which placed the employees and those of the same sex at a particular disadvantage compared with others. This will be indirect sex discrimination unless the employer can justify the PCP as a proportionate means of achieving a legitimate aim. The Tribunal identified two relevant PCPs: (i) allowing access to single-sex changing rooms on the basis of self-declared gender identity; and (ii) prioritising the perceived rights of transgender employees to use facilities aligned with that identity over the rights of other employees to single-sex facilities. While these PCPs applied on their face to both men and women, the Tribunal found they placed women at a particular disadvantage, as women are more likely to feel distressed, fearful, or humiliated when required to share communal changing facilities with a member of the opposite biological sex. The Trust failed to justify the PCPs, and the indirect discrimination claim succeeded.

The Tribunal said that the trans woman should instead have been provided with ‘alternative, suitable and dignified facilities’, rather than permitting her to use the female changing room. Also that expecting the trans woman to use male facilities may also have had the affect of violating her dignity and potentially her Article 8 European Convention on Human Rights (ECHR) right to a private life.

Implications: This case highlights the highly sensitive and complex issues surrounding the use of single-sex facilities by trans individuals and the challenges employers face in balancing the rights of employees with competing protected characteristics. A clear, well-drafted equality, diversity and inclusion policy is essential to support and guide decision-making.

Although Hutchinson will be of particular interest to employers reviewing their policies on single-sex facilities, it is important to recognise that as it is only a Tribunal-level decision, it is not binding.

Further guidance is expected when the Equality and Human Rights Commission (EHRC) publishes its revised Code of Practice for Services, anticipated this year. In the meantime, employers should continue to mainly rely on the principles set out in For Women Scotland and the current EHRC guidance which advises employers to provide sufficient single-sex spaces but also adequate facilities for trans employees. This is likely to be a matter of resources available to each employer, with large-scale employers expected to take more extensive steps than a small employer with few employees.