An employment tribunal has found a group of nurses had their dignity violated, after an NHS trust allowed a transgender colleague to use the women’s changing room.
This judgement – whilst only binding on those directly involved in the case – will be carefully analysed for its wider implications for the NHS and beyond, especially given it deals with the fault line between opposing views on sex and gender.
At the heart of the case was the question of whether the nurses’ rights were infringed by County Durham and Darlington NHS Trust when it allowed Rose Henderson, a biological male who identifies as a woman, to use the female changing rooms.
The panel did not criticise Rose, and all the claims related directly to them were dismissed by the panel. Claims the trust had victimised the nurses were also dismissed.
However, it concluded that although a transgender person has protections from discrimination and harassment, that “does not translate into a positive ‘right’ on the part of a trans woman to use the female changing room (or for that matter of a trans man to use the male changing room)”.
The tribunal rooted its findings in last year’s Supreme Court ruling that in the 2010 Equality Act, a woman is defined by biological sex not gender identity.
As the Supreme Court is the highest court in the land you would expect that, but it is not necessarily straightforward.
In December 2024, a judgement in Scotland involving another NHS nurse, Sandie Peggie, who also complained about a trans woman colleague using the female changing rooms, came to a notably different conclusion.
She was found to have faced harassment from the NHS trust for a limited period for how it handled her complaint, but claims of discrimination were dismissed. Sandie Peggie is appealing against the judgement.
In contrast to the Darlington ruling, the Scottish tribunal appeared to work on the basis that that a trans person had the automatic right to use facilities aligned with their gender rather than biological sex.
Immediately afterwards, legal experts questioned whether there is the case law to back this up.
Although neither case would normally have impact beyond those involved, it is a sign of how the similarities and differences in these judgements will be picked over.
Associate professor of law at University of Oxford, Michael Foran, thinks there will be more cases like this.
“Many organisations have been led to believe that there is a legal right to access single sex spaces based on self-identification,” he says.
“Cases such as this show that this was a misreading which disregards the rights of women as set out in both equality law and the workplace health and safety law.”
Whilst the Darlington nurses have been describing their delight at the employment tribunal finding, the NHS trust is taking time before it comments.
The gender critical campaign group, Sex Matters, says the Darlington judgement is “clear and sensible” – and that it should be a final warning to employers to “return to sex-based policies and rules”
Translucent, a group which campaigns for trans rights, says employers have a duty to ensure everyone is accommodated and that “while the Supreme Court ruling “has made it harder” for service providers, “most people are inclusive, and cases like this are quite rare”.
And these cases add to pressure on the government to publish new guidance from the Equality and Human Rights Commission on what this all means for businesses who are dealing with the day-to-day practicalities of operating toilets, changing rooms and other single sex spaces.
