Employment law insights
The bathroom wars
The spate of cases regarding the use of single-sex toilets and changing rooms by trans employees has continued unabated. Although the recent judgments lack consistency, they tend to be moving in one direction: that employers should permit employees to use only the single-sex facilities of their biological sex and not their gender identification.
“The Darlington Nurses” (a group of six female nurses complaining about sharing changing facilities with a biological man who identified as female) won their case, officially known as Bethany Hutchinson and Others v County Durham and Darlington NHS Trust, in which it was found that “Having considered the Equality Act we can see nothing there that would render ‘lawful’ a policy that gave biological males the choice to use a female changing room, effectively overriding the objection of female colleagues.”
The judgment also stressed that protecting trans women from discrimination and harassment did not amount to a positive right to use the female changing room.
Another nurse, Sandie Peggie, partially succeeded in her case, Peggie v Fife Health Board and Dr Beth Upton, although the decision was slightly overshadowed by the revelation that the judgment contained several (possibly AI generated) inaccurate references to previous cases.
Perhaps attempting to find some middle ground, the tribunal held that the Health Board harassed Mrs Peggie by failing to revoke the permission of Dr Upton (a biological male who identified as female) to use the changing room until new rotas came into effect under which Mrs Peggie and Dr Upton would work separately. Mrs Peggie is appealing on the basis that her other claims should have succeeded too.
The outlier is Maria Kelly v Leonardo, in which a tribunal found that “a toilet access policy of permitting access based upon asserted gender rather than sex was an appropriate means to achieve the aim of an inclusive workplace environment”.
Maria Kelly is appealing and, in the meantime, the safer route for employers would be not to rely on this judgment but take the approach recommended by the Equalities and Human Rights Commission and endorsed in the Darlington Nurses case, that access to single-sex facilities should be determined by biological sex.