Tribunal upholds claims of indirect sex discrimination and harassment related to sex and gender critical belief over trans-inclusive toilets and changing policy

At a glance

• An employment tribunal found that NHS England’s (NHSE) policy allowing transwomen to use female-only facilities amounted to indirect sex discrimination and harassment.
• The policy placed women, including Muslim women and women with PTSD related to male sexual violence, at a particular disadvantage.
• Although NHSE’s aims were legitimate, the tribunal held the policy was not a proportionate means of achieving those aims, as less discriminatory alternatives were available.
• The tribunal confirmed there is no express legal right for transgender individuals to access single-sex facilities based on gender identity under current UK law.
• The case highlights the need for employers to carefully assess policies on single-sex facilities and ensure they are legally justified and proportionate

In LS v NHS England the employment tribunal considered whether NHSE policy and practice of allowing female toilets, changing facilities and showers at LS’s workplace to be used by (biologically male) transwomen constituted indirect discrimination against LS on grounds of her sex, religion, gender critical beliefs or disability and harassment related to sex and gender critical belief. The tribunal concluded that the claims of indirect sex discrimination and harassment on grounds of sex and gender critical belief succeeded.

LS worked for NHSE on a hybrid basis at home and at premises in Leeds. LS relied on four protected characteristics under the Equality Act 2010 (EqA):

• Sex.
• Religious belief (Islam).
• Disability (PTSD related to male sexual violence).
• Philosophical belief (gender critical belief).

In or around 2017 NHSE drafted its Trans Equality Policy and Procedure (TEP) with input from Stonewall. The TEP stated that a trans employee should agree with the employer the point at which the use of facilities such as changing rooms and toilets should change from one gender to the other.

In October 2022 an email was sent to NHSE staff informing that a colleague, Person X, was transitioning at work and linking to the TEP. LS subsequently attended a trans awareness presentation, during which she raised concerns that NHSE’s decision to allow transwomen to use female only facilities had effectively turned those facilities into mixed sex facilities. LS also spoke to her line manager regarding her PTSD and said she wished to challenge the TEP. LS emailed NHSE’s EDI Manager asking where she could find single-sex toilet and changing room facilities, stating that this was particularly important for women who have experienced sexual assault and have PTSD or those from religious minorities.

In April 2023 LS raised a grievance, which was partially upheld on appeal. The grievance outcome stated that NHSE would have explored whether LS could be provided with single occupancy shower facilities; NHSE was in the process of moving to new premises which had unisex single occupancy lockable showers. Unisex single occupancy toilets were available at both premises, although the majority of toilet provision was single sex.

It was common ground between the parties that NHSE applied a policy (PCP) of allowing transwomen to access female-only facilities and of permitting trans staff of access single-sex facilities provided for the opposite sex.

NHSE conceded that those PCPs put the following groups as a whole, and LS as an individual, at a particular disadvantage compared with others who did not share the relevant protected characteristic:

• Women.
• Women who were Muslims.
• Women with PTSD relating to male sexual violence.

The key issue in respect of indirect discrimination was whether or not NHSE could justify the disadvantage caused by the PCPs as a proportionate means of achieving a legitimate aim.

LS accepted that NHSE had the legitimate aims of sensitively balancing the competing rights of its employees and visitors, respecting the gender identity of its employees and visitors, adhering to the EqA and allowing access to appropriate single sex and gender-neutral showering, washing and changing facilities as far as reasonably possible. The tribunal concluded that NHSE’s aims of adhering to guidance or published good practice advice in relation to provision of single sex facilities and adhering to the provisions of its lease were also legitimate.

The tribunal noted that reliance on contemporaneous guidance or good practice advice cannot justify an incorrect interpretation of the law. Employers must seek their own legal advice and ensure that they are applying the law correctly. The tribunal further noted that there is no express legal right for a transgender person to use the single sex facilities of their gender identity under either the EqA or the Workplace (Health, Safety and Welfare) Regulations 1992 (Workplace Regulations). In R on the application of the Good Law Project the High Court concluded that an employer would comply with the Workplace Regulation if they adopted and applied a policy that female toilets were only available to biological women.

The tribunal understood NHSE’s concern that a transwoman who was not permitted to use women’s single sex facilities may seek to bring a claim for gender reassignment discrimination, but noted that a claim of direct discrimination would fail if the reason for the transwoman’s exclusion from those facilities was their biological sex (assuming that alternative unisex facilities were available) and any harassment complaint would be likely to turn on whether it was reasonable for the refusal to permit transwomen to use the women’s single sex facilities to have the effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

In any event, an alternative (lesser) measure was available to NHSE to achieve its aims ie permitting transgender staff to use alternative unisex facilities if they did not want to use those of their biological sex as there were far fewer transgender staff than women, or Muslim women, and this would also have far less impact on disabled staff than requiring women who did not want to share single sex facilities to use unisex facilities.

The tribunal therefore concluded that NHSE’s PCPs were not objectively justified. However, the indirect religion / belief and disability claims failed as they were based on a combination of protected characteristics.

NHSE accepted that their policy of allowing transwomen to use female only facilities amounted to unwanted conduct and that this policy had the effect of violating LS’s dignity or creating an intimidating, hostile, degrading or offensive environment for her. The only question was whether it was reasonable for it to have that effect. The tribunal concluded that it was reasonable in the circumstances for the policy to have that effect both because of her sex and her gender critical belief.

The tribunal accepted that it would not be possible for NHSE to guarantee that single sex toilets would only be accessed by women, but said that NHSE could take reasonable steps to ensure that such a policy was complied with by employees and visitors.