Summary: A tribunal ruled that County Durham and Darlington NHS Foundation Trust harassed and indirectly discriminated against nurses by not taking their concerns about sharing a changing room with a transgender colleague seriously. The judgment clarifies that ‘sex’ in both the Equality Act 2010 and Workplace Health and Safety Regulations means biological sex, not gender identity. This provides certainty for employers managing single-sex facilities. HR teams should review their policies, ensure compliant toilet and changing facilities, and consider providing alternative facilities for trans and non-binary staff whilst maintaining an inclusive approach.
Last week, a tribunal found that County Durham and Darlington NHS Foundation Trust harassed and indirectly discriminated against nurses by allowing a transgender woman to use a female changing room. This judgment shows a direction of travel for how employers should manage single-sex workplace facilities.
Eight nurses from Darlington Memorial Hospital said they were penalised by managers after raising concerns about sharing a single-sex space with a biological male colleague who identified as a woman. The ruling found that the NHS trust had violated the nurses’ dignity and harassed them particularly because their objections were not taken seriously.
It’s a judgment that goes to the heart of several issues that have dominated sex and gender disputes in recent years, particularly since the Supreme Court judgment in For Women Scotland.
For HR professionals, the case provides timely guidance on an area that has been uncertain for many employers: how the Equality Act 2010 interacts with workplace health and safety law when it comes to toilets, washing and changing facilities.
Understanding the case: Single-sex workplace spaces
At the heart of the dispute was a widely held assumption in many organisations that single-sex workplace spaces should be allocated according to gender identity rather than biological sex.
This approach has often been justified by reference to the protected characteristic of gender reassignment (in effect, trans people) under the Equality Act 2010 – it’s an extension of the principle that Trans Women Are Women.
This is where it becomes more delicate from a legal perspective: Trans Women Are Women is a slogan of the trans rights movement, adopted by many NGOs, trade unions and charities over the past 15 or so years. It’s been so successful that many organisations have adopted it into policy as though it were law. But while it is a pithy campaigning slogan, as a statement of law it was always incorrect.
As the Supreme Court found in For Women Scotland last year, the law has always been that where the Equality Act 2010 is engaged (which is effectively everywhere there is the potential for discrimination to arise), sex (and man, and woman) refers to the biological meaning, regardless of an individual’s gender identity.
What makes this case particularly significant is that the tribunal directly examined whether single-sex workplace facilities should be organised by sex or by gender identity. The judgment also makes clear that treating gender identity as determinative – in line with the Trans Women Are Women approach – can expose employers to legal risk.
What this ruling means for workplace law
A key feature of the ruling is its analysis of the relationship between the Equality Act 2010 and the Workplace (Health, Safety and Welfare) Regulations 1992.
The 1992 Regulations require employers to provide suitable toilet, washing and changing facilities and, in many cases, to segregate them by sex. Following For Women Scotland, some employers questioned whether “sex” might be defined differently in the 1992 Regulations than in the Equality Act.
The tribunal addressed this directly and found that the definition is the same in both pieces of legislation: sex means biological sex.
For employers, this simplifies and clarifies the issue. Having a single, consistent definition avoids the complexity that would arise if different rules applied under different definitions.
It also avoids difficult distinctions, such as whether a trans employee has a Gender Recognition Certificate, and removes the risk of applying different definitions to employees and members of the public using the same facilities – for example, the toilets in a restaurant.
What’s new is certainty: sex means biological sex.
Next steps for HR
Considering this ruling, HR teams should review their current arrangements and policies relating to workplace facilities. Key priorities include the following.
Understand your compliance obligations
The Workplace Regulations apply to almost all non-domestic workplaces, and compliance is mandatory. Employers should ensure they meet the core requirements:
- Toilet facilities: Adequate toilet facilities must be provided. These are generally expected to be separate for men and women, although limited mixed-sex arrangements are permitted in specific circumstances.
- Washing facilities: Where the nature of the work requires them, suitable washing facilities must be provided. These should normally be for separate use by men and women, unless they are designed for single-person use and can be locked from the inside.
- Changing facilities: If employees need to change clothes for work and it would not be appropriate or safe to do so elsewhere, suitable changing facilities must be provided. These should be separate for men and women and include seating.
If an organisation does not currently have compliant facilities, it will need to take steps to provide them. Clear, written instructions should also be issued to managers and staff confirming that the sex-segregated nature of these facilities must be respected.
Provide facilities for trans and non-binary staff
Employers should consider providing alternative facilities for trans or non-binary employees where needed. This may include separate facilities, for example changing areas designated for trans men or trans women, where individuals do not feel able to use facilities aligned with their sex.
The Workplace Regulations allow a limited form of mixed-sex toilet provision. This is permitted where each toilet is a fully self-contained room. In these circumstances, the shared access area may be signed as mixed-sex.
Review advice and policies carefully
Many employers have been advised that single-sex spaces must be allocated based on gender identity, and that failure to do so would be discriminatory. This ruling makes clear that such an approach is not legally required and may lead employers into behaving unlawfully and in a way that will lead them to lose litigation.
Where there is uncertainty, employers should take bespoke written advice from a regulated law firm with expertise in workplace law. Policies should be reviewed to ensure they reflect current rulings.
Where your policies reflect the Trans Women Are Women approach, check whether this has arisen from external advisors – and be extremely careful about taking further advice from those same sources.
An inclusive approach is still required
Let’s be clear – this ruling in no way removes the need for sensitivity or inclusive employee relations. Indeed, for HR teams, the priority now is to review policies, facilities and training to ensure compliance, consistency and confidence in managing what remains a complex and delicate area in our workplaces.
Key takeaways
If you’re reviewing your organisation’s approach to workplace facilities, consider these priorities:
- Audit your current facilities. Ensure toilet, washing and changing facilities comply with the Workplace Regulations, which require sex-segregated spaces based on biological sex. If you don’t currently meet these requirements, take steps to provide them.
- Provide alternative options. Consider separate facilities for trans or non-binary employees who don’t feel able to use facilities aligned with their biological sex, such as designated changing areas or single-occupancy rooms.
- Review your policies urgently. If your current guidance reflects the ‘trans women are women’ approach to facility allocation, update it to reflect this ruling. Seek specialist legal advice if you’re uncertain about compliance.
- Maintain inclusive employee relations. This ruling doesn’t remove the need for sensitivity. Approach these changes with empathy, clear communication and respect for all employees’ dignity and wellbeing.
Next read: Holding the rope after the UK Supreme Court verdict: A guide for inclusive HR leadership
