What can employers learn from the latest case on separate sex changing rooms?

In December 2025, a tribunal held that a NHS Trust harassed a female nurse by allowing a male doctor who identified as a woman to use a female changing room, but only after she complained and up to the point an alternative arrangement was put in place to prevent the two coming into contact with each other. You can read our overview here. 

Another decision - Hutchinson and others v County Durham and Darlington NHS Foundation Trust - considers whether a similar policy in a different hospital harassed a group of female nurses and/or amounted to indirect sex discrimination.  

Facts

The Trust had a transitioning at work policy which allowed transgender staff to use the changing rooms aligned with their gender identity from the point they declared they were “living their life fully in that gender”. It directed those employees who did not want to share facilities with members of the opposite sex to "use alternative facilities" even though there were none available. 

Rose is a biological man who identifies as a woman and is protected under the gender reassignment provisions in the Equality Act 2010. Rose started using the female changing rooms in 2019 during an university placement. However, due to Covid, Rose didn't come into the hospital on a regular basis until they qualified and began working for the Trust in October 2022. 

In summer 2023, Ms Hutchinson discovered that Rose was using the female changing room. She, and a number of other nurses, were unhappy about this and raised it with a ward sister. Unbeknown to them, other nurses had previously raised similar concerns and HR had been informed. A group of clinical managers met to discuss the situation - during which, one of them shared a rumour that Rose was trying to have a baby with their partner, had stopped taking hormones and was “looking more masculine”.

The manager who'd shared the rumour didn't think it was appropriate to speak to Rose because of the clear terms of the policy and because Rose had used the changing room for years and they didn't consider Rose to be a threat to anyone. The manager was also worried that even having a conversation with Rose might amount to unlawful discrimination. That view was shared by others - including HR.

No-one from HR thought it necessary to speak to the nurses or to visit the changing room. They didn't know there were no private spaces to change (other than the toilets) which meant that nurses had to get into and out of their uniform in front of others.   

In September 2023, the nurses were told they had to accept Rose's presence in the changing room because of "NHS inclusiveness”. 

Their line manager became aware of their concerns in February 2024 and reported these centred on Rose being "physically a male and living a male life". She asked HR for advice.  

The nurses weren't given a response and believed that the Trust wasn't listening to them or taking their concerns seriously. Several nurses sought legal advice and their solicitor issued a letter of complaint in April 2024 which was signed by 26 nurses. The complaint was quickly circulated to senior executives and the Trust's head of workforce and organisational development decided to set up a meeting with the nurses to “educate” them about being inclusive and to “broaden their mindset”. 

Senior managers met with the nurses in May 2024 but did not offer any firm proposals. 

Eight nurses issued claims in the tribunal against the Trust. Shortly afterwards the Trust came up with a temporary solution for female nurses who objected to sharing their facilities with Rose. It designated an old office as a temporary female changing room which didn't comply with fire regulations.

Decision of the tribunal

The nurses argued that they had been harassed by Rose's presence and alleged behaviour in the female changing room, by the policy itself and the Trust's failure to address their concerns. They also argued that the policy indirectly discriminated against them and women as a sex class.  

Harassment

The tribunal found that Rose's use of the female changing room was unwanted conduct relating to sex and gender reassignment and that it violated the dignity of the nurses. But Rose was not personally responsible for this because they had permission to be there, no one from management had spoken to Rose about the nurses' concerns, and Rose hadn't behaved improperly. The Trust was “responsible and accountable for this state of affairs, not Rose”.

The Trust's policy, however, did harass the nurses because:

• There were no alternative facilities the nurses could use which meant the Trust “in effect required the Claimants to share the changing room with Rose” and that amounted to unwanted conduct relating to both sex and gender reassignment.
• The purpose of the policy was “admirable and noble” but its effect violated the nurses' dignity and created a hostile, humiliating and degrading environment for them. They lived with “apprehension every working day” that they may encounter Rose.
• It was reasonable for the nurses to feel that way: their complaints were ignored, they were told they needed to be educated, and the policy prioritised the needs of trans staff over the rights of women to have a single sex changing area.
• The policy was not lawful. The Workplace (Health, Safety and Welfare) Regulations 1992 require separate facilities for men and women, except where individual lockable rooms are provided to be used by one person at a time. The tribunal accepted that the meanings given to men and women in those regulations must “logically be the same as under the Equality Act 2010” and as soon as the Trust permitted Rose to use the female changing room, the Trust breached those regulations.
• The Equality Act did not confer on transgender employees the right to use the changing facilities that accord with their acquired gender, and Rose's convention rights (specifically Articles 8 and 10) would not have been infringed if the Trust had prevented Rose from using the female facilities. However, even if it this did interfere with Rose's convention rights, there was a “very strong case” for arguing this was legitimate because it was in accordance with the 1992 regulations and did not breach the Equality Act. The tribunal opined that the situation may have been different if Rose had been told to use the male changing room.

The Trust's inadequate response to the nurses' concerns also harassed them. Its managers told the nurses that they had to accept the policy and mistakenly believed that the rights of Rose (and other transgender staff) trumped the rights of biological women. The nurses were percieved to be trouble makers. This situation created a hostile environment and it was reasonable for them to feel this way.

Indirect discrimination

The nurses argued that the Trust's policy of (i) giving staff access to single-sex changing rooms based on self-declared gender identity indirectly discriminated against them on the basis of sex; and (ii) prioritised the perceived rights of transgender employees to use changing facilities based on their self-declared gender identity over the rights of other employees to have use of a single sex facility. Both of these amounted to a PCP.

The tribunal then considered whether these PCPs put women at a disadvantage compared with men. It found they did. It accepted that more women experience sex-based harassment or violence than men and this partly explains why, in general, women are more sensitive about having to undress to their underwear in the presence of members of the opposite sex. And, if women have experienced sex-based harassment or violence “it is not much of a leap to infer that they are more likely to suffer fear, distress and/or humiliation by the application of the PCPs in the case. There is … an obvious link and at the very least, it is a legitimate and proper inference to draw”.

In terms of the pool affected by the policy, the tribunal said it was those workers who used the facilities. Approximately 300 women use the changing room: 80% of staff are female, over 80% of nurses are female and 26 nurses (8.6%) objected to Rose using the female changing room. The tribunal said it was “highly likely” that other staff felt the same way but were unwilling to add their names to the letter of complaint. The tribunal accepted that had a biological female who identified as male used the male changing room, men would be unlikely to react in the same way as women.

The tribunal then considered whether the PCP put each of the claimants at that disadvantage and found it did “each … experience[d] feelings and apprehensions of fear, distress and humiliation”.

The final strand of the analysis was whether the PCPs were a proportionate means of achieving a legitimate aim. The tribunal accepted the Trust had a legitimate aim of balancing the competing rights of its employees, respecting the gender identity of its staff and adhering to relevant legislation and guidance around single-sex facilities. But this was not a case about balancing competing rights. There was “no right in law for a transgender person with or without the protected characteristic of gender reassignment to use a single-sex changing room with their affirmed gender”. It said that the prohibition against gender reassignment discrimination under the Equality Act “does not equate to a ‘right’ to access that space, such that it gives rise to competing rights with women who have rights under the 1992 regulations to be provided with suitable single-sex facilities”.

The Trust didn't attempt to strike any kind of balance. No-one spoke to Rose or asked if they were willing to use alternative facilities. The temporary solution provided for the nurses was cobbled together and was unsuitable. The tribunal concluded “on any analysis, a ‘sensitive’ balancing would have required having a sensitive discussion with Rose. It would have been more reasonable to ask - or insist - that Rose use temporary facilities”. But this was not countenanced. A less discriminatory measure was available: providing Rose with suitable and dignified facilities which would have respected Rose's gender identity and the biological sex of the nurses. This would not have infringed Rose's convention rights or amounted to direct discrimination against Rose on the grounds of gender reassignment.

The Trust could not satisfy the test of proportionality when it was acting unlawfully in contravention of the 1992 regulations and when it unlawfully interfered with the Claimant's article 8 convention rights. The Claimant's therefore succeeded with their indirect sex discrimination complaint.  

Comment

This is a first instance decision. It is binding on the parties but not on any other tribunal or higher court. The Trust appears to have accepted the decision and has apologised to the nurses. It had changed its policy and provided separate facilities for Rose before the outcome of this case. 

Many organisations still haven't considered whether their policies around toilets and changing rooms are legally sound. Some erroneously believe they need to wait until the EHRC Code of Practice is approved by the government before doing anything. We still don't know when that might happen, but it's worth remembering that whatever the guidance does say it won't change the law. 

So what should organisations do?

This tribunal provided sensible advice: “this litigation would never have arisen had the Trust provided for single sex changing rooms and provided suitable, dignified premises for Rose, all the while recognising and respecting Rose as a trans woman”. 

That is likely to require putting in place third spaces for transgender staff to use if they do not want to use the changing rooms aligned to their biological sex.   

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