Can employers allow trans employees to use opposite sex changing rooms?

Shortly before Xmas, two employment tribunal decisions were handed down - one related to separate sex workplace changing rooms, and the other to toilets. These are the first employment cases to grapple with the Supreme Court's judgment in For Women Scotland v The Scottish Ministers that sex in the Equality Act 2010 means biological sex and is unaffected by a gender recognition certificate. 

In Peggie v Fife Health Board (1) and Upton (2) the tribunal had to decide whether a female nurse had been directly and indirectly discriminated against by her employer's policy which allowed a biological male who identified as a woman to use a female changing room, and whether this amounted to harassment. 

Facts

Ms Peggie is an experienced nurse working in the A&E department. The hospital had two changing rooms near to A&E for staff to change into their work clothes: one for males and the other for females. Each had a sign on the door. 

Ms Peggie had used the female changing room for 12 years without incident. However in August 2023, she noticed that a trans woman was in the female changing room (Dr Upton). She was uncomfortable and raised this with her line manager who agreed to look into it. 

In October 2023 Ms Peggie was partially undressed when Dr Upton entered the changing room. She spoke to her line manager again who told her that Dr Upton was allowed to change there because they identified as a woman. Ms Peggie was angry and upset by this.

On 24 December 2023, Ms Peggie experienced heavy menstrual bleeding and went into the changing room to change into a clean uniform. Dr Upton was also there. Ms Peggie confronted Dr Upton, asked about their chromosomes and explained she was intimidated and couldn't change in front of men because she had a ‘bad history with men’ (she had been sexually assaulted as a teenager). She also said that women have a right to feel safe and referred to a convicted male rapist who had been housed in the female prison estate.

Dr Upton told Ms Peggie they had permission to use the changing room and said that she should raise the issue through the appropriate proceedures if she was unhappy.

Dr Upton immediately complained to a colleague about the incident and in the early hours of Christmas Day emailed another colleague about what had happened. Dr Upton said they didn't feel safe using the changing room when Ms Peggie was there. The incident was recorded on the hospital's system as a ‘verbal assault’ linked to the protected characteristic of gender reassignment.

The hospital put Ms Peggie on ‘special leave’ for a couple of weeks over Xmas and then formally suspended her. She returned to work mid April whilst the investigation was on-going. By that time the hospital had arranged rotas so that she had different shifts to Dr Upton and there was no possibility that the two would encounter each other in the female changing room.

Ms Peggie brought proceedings against NHS Fife and Dr Upton whilst the investigation process was ongoing.

Decision

The tribunal acknowledged that the Supreme Court determined that reference to sex in the Equality Act 2010 relates to biological sex, and that sex is binary. People are either male or female. 

Ms Peggie argued that this decision applied to the workplace and meant that trans people should be excluded from toilets and changing rooms that don't align with their sex. The hospital argued that once a person has the protected characteristic of gender reassignment, they must be regarded as having the sex they identify as having and be allowed to access the toilets and changing rooms that align with their identity. 

The tribunal rejected both approaches. It said that blanket bans would materially reduce the protections afforded to trans people under the gender reassignment provisions in the Equality Act which would be inconsistent with their Convention rights and assimilated EU law. It also rejected the respondent's submissions because they were inconsistent with the Supreme Court's judgment in FWS.  

The tribunal said that the FWS judgment addressed the issue of single and separate sex spaces in the context of public services under Part 3 of the Equality Act and its conclusions were not relevant to Part 5 which deals with workplaces. It took the view that ‘Parliament intended that changing rooms and toilets should be treated differently in the context of work to the context of public services'. 

It also rejected Ms Peggie's arguments that the Workplace (Health, Safety and Welfare) Regulations 1992 required the hospital to provide separate facilities for its staff on the basis of their biological sex. It said that employers who breached these regulations committed a criminal offence and it didn't have jurisdiction to hear those complaints. It also said that the words men and women aren't defined in those regulations, and the definitions adopted by the Supreme Court only applied to the Equality Act.

The tribunal said that the Equality Act did not provide any mechanism to resolve conflicts between employees whose protected characteristics conflicted. But it had to find one to determine whether the hospital had harassed Ms Peggie by allowing Dr Upton to use the female changing room.   

It decided to apply the test established by the Supreme Court in Bank Mellat (a case about the prevention of terrorism) to assess whether the hospital had acted proportionately. This requires a tribunal to analyse four elements - each of which has to be met. 

Applying that test to the facts of this case, the tribunal found that the hospital wished to protect the rights of Dr Upton and promote diversity and inclusion. These objectives met the first element of the test. And giving permission for Dr Upton to use the female changing room was connected to those objectives which met the second part of the test. 

The tribunal then considered whether the hospital could have taken a less intrusive approach to achieve those objectives (part three of the test). 

It did this by looking at what the hospital had done at different times:

• 2 August to 15 September 2023: this was the period during which Dr Upton was given permission to use the female changing rooms and did so without any other member of staff complaining. The tribunal said the hospital could not reasonably have been aware that Dr Upton's presense could be perceived as harassment by other members of staff and it was not an issue that had been identified within the NHS in Scotland.
• 16 September 2023 to 13 April 2024: Ms Peggie had complained to her line manager in August and, after investigating this, the hospital should have revoked Dr Upton's permission until a long-term solution was found. There were less intrusive options it could have taken during this period as there were other facilities Dr Upton could have used.
• From 14 April 2024 onwards: the hospital changed rotas to prevent Ms Peggie and Dr Upton using the changing room at the same time. That was the least intrustive measure it could take and it didn't have an appreciable adverse impact on either party - or anyone else as the hospital hadn't received any other complaints. 

The final part of the test was whether the hospital had reached the right balance when measured against the impact of its policy on Ms Peggie. It said that the extent to which Dr Upton had changed their outward appearance and taken hormones or had surgery was relevant. It said: ‘if a person’s body remains male that may be a contra-indicator to the grant of permission to use a female changing room where one or more of the female staff using it have a reasonable concern of an impact on their sense of dignity'.

Dr Upton hadn't made any physiological changes to their sex and the tribunal concluded their body remained male. But Dr Upton had made changes to the non-physiological attributes of sex by adopting a female style of dress, wearing make-up, using a female name and she/her pronouns. 

The employer had to balance these considerations alongside the views of other members of staff (including how many complaints they received and the reasons for their objections), the wishes of the trans person and what other facilities are available.

In this case the hospital had struck the wrong balance from the time it was aware of Ms Peggie's concerns (and had time to consider them) to the date she returned to work. The hospital had acted unlawfully during this period and had harassed Ms Peggie by allowing Dr Upton to use the female changing room.

But the tribunal rejected Ms Peggie's claim that Dr Upton's presense in the changing room also harassed her - even when they were using it at the same time. It accepted that this amounted to unwanted conduct relating to sex and had violated her dignity but concluded it was not objectively reasonable for her to feel that way. There was no threat to her safety when she encountered Dr Upton and once the new rota was in place, it was not reasonable for her to feel harassed by Dr Upton using the changing room when she was not in it.  

The other point worth highlighting is that the tribunal found that Ms Peggie had harassed Dr Upton during their confrontation on Christmas Eve. It found that she directly attacked Dr Upton and asked intrusive and confrontational questions which invaded Dr Upton's privacy. It also said that it was reasonable for Dr Upton to conclude that Ms Peggie had implied they were a sexual predator by bringing up the issue of a male rapist who had been housed in a female prison. This amounted to proselytising and was an unlawful manifestation of her protected beliefs.

She was, however, entitled to tell Dr Upton that it she didn't think they should be in the female changing room, and that women had a right to feel safe. But it would have been better if she had raised a grievance via the proper proceedures. 

Ms Peggie succeeded on three of her other harassment claims against the hospital including the unreasonable length of time it had taken to investigate Dr Upton's complaints against her. It rejected her direct sex discrimination, indirect discrimination and victimisation claims. 

Comment

This decision is binding on the parties but not on any other tribunal or organisation. Ms Peggie has already said that she intends to appeal.

The judgment is controversial - not only in terms of the decision the tribunal reached (more on that below), but also because it contains many judicial errors. To date, two certificates of correction have been issued to deal with incorrect citations, terminology and misquotations.

This decision does not appear to correctly grapple with the Supreme Court's judgment which recognised that in some contexts, such as changing rooms, women need safety, autonomy, privacy and dignity. The tribunal disregarded those conclusions because they were made in the context of public services rather than workplaces. But it fails to explain why it also disregarded the principle that in some contexts individuals have a right to bodily privacy from members of the opposite sex. 

The tribunal operated on the basis that Dr Upton had the right to access a female changing room under Article 8 of the European Convention on Human Rights (despite there being no case-law on this specific point) and that Ms Peggie had a right to privacy under Article 8. It therefore considered this to be a conflict of rights situation without considering the wider context and the specific laws in place which regulate separate sex toilets and changing rooms. 

If this decision is correct (and we don't think it is) it will create significant difficulties for employers.  

The tribunal suggests that employers are able to designate spaces as single sex and then admit members of the opposite sex, who are protected under the gender reassignment provisions of the Equality Act, on a case by case basis. That will put a huge burden on managers. They will have to ask intrusive questions about the employee's transition - potentially including whether they have had surgery or taken hormones before deciding whether to admit them. They may also have to consider the degree to which they pass as a member of the opposite sex. If they deny access, the employee in question will be able to raise a grievance and appeal against that if it doesn't go their way. 

Even if they do admit individual employees, if staff complain, the employer then has to decide what to do. The tribunal says a third space would provide greater privacy but doesn't say who for. Should the employer ask the trans employee to use the third space or the people who object to their presense in the changing room? Will the answer to that depend on how many people complain and how big the alternative spaces are? And what do they do if there isn't a third space? 

It also assumes that if no-one actually complains that implies agreement. That's a very bold approach. Even if you conduct a risk assessment before putting in place a policy (which the tribunal recommends) how do you accurately gauge the views of your staff on an issue that many people feel afraid to express their actual beliefs? Anonymous responses would certainly provide a more reliable indicator but do you also ask your staff to explain why they object and how do you objectively analyse what they have told you?  Do the concerns of someone who has experienced sexual trauma or with strict religious beliefs hold more weight than those of people who simply want privacy and dignity and are uncomfortable sharing spaces where they undress with members of the opposite sex?   

We may get the answers to these and some of the other technical issues this judgment raises from the EAT. Until then, we recommend that you follow the principles set out in the Supreme Court's judgment and take legal advice if members of your staff raise specific issues about your policy.

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