Can a policy which allows trans women to use female changing rooms be discriminatory?
Yes, according to the Employment Tribunal in Hutchinson and others v County Durham and Darlington NHS Foundation Trust.
Further to my recent article on For Women Scotland Ltd v Scottish Ministers 2025, the management of single-sex facilities in the workplace continues to be a litigious area.
As a brief recap, the Supreme Court in For Women Scotland Ltd found that a “woman”, for the purposes of the Equality Act 2010, means a biological woman. The implication is that trans people with a gender recognition certificate will, in law, be treated according to their biological sex at birth.
The case in Hutchinson concerned eight female nurses employed by the NHS Trust who complained that another employee (a trans woman) was using the women’s changing facilities. This was in line with the Trust’s Transition in the Workplace policy (‘the policy’), which permitted transitioning employees to use whatever changing room corresponded to their self-declared identity.
After the Trust refused to amend its policy following complaints from the Claimants, the Claimants issued claims in the Employment Tribunal for indirect discrimination and harassment. The Employment Tribunal had to interpret the Equality Act 2010 in light of the Supreme Court decision in Women Scotland.
The Tribunal’s decision
Employment Judge Sweeney (not linked to this firm) found that “by requiring the Claimants to share changing room with a biological male trans woman…the Respondent engaged in unwanted conduct related to sex and gender reassignment which had the effect of violating the dignity of the Claimants and creating…a hostile, humiliating and degrading environment.”
In other words, the Tribunal found that the Trust had harassed the Claimants by requiring them to share a changing room with a trans woman. Further, failing to address the Claimants’ concerns about the policy and asking the Claimants to ‘broaden their mindset’ also amounted to harassment.
With regards to the indirect discrimination claim, the Tribunal found that, although the Trust’s policy applied to both men and women, women were placed at a particular disadvantage because they were more likely to feel distressed or fearful when required to share changing rooms. As the Trust had failed to justify the policy, this claim also succeeded.
What this means for employers
Although this case has attracted a lot of media attention, it is non-binding and there could be an appeal by the Trust.
Nonetheless, it reminds employers that their policies must be clearly drafted so that they are compliant with the Equality Act framework. Employers must undertake a proportionality assessment before deciding to grant access to single-sex facilities and, where possible, provide suitable alternative arrangements, and consult with both the transitioning employee and other affected colleagues when dealing with staff concerns seriously.
If you need assistance with your policies or dealing with complaints of a similar nature, we’re here to help. Please get in touch with us at Employment@SchofieldSweeney.co.uk.