A recent employment tribunal decision highlights the risks for employers where policies affecting access to single-sex workplace facilities are not supported by workable, practical arrangements. The tribunal’s findings illustrate how policies concerning access to single-sex spaces can expose employers to legal risk if they do not adequately address the impact on all affected staff.
This decision sits alongside other recent tribunal cases in this area but it does not establish a clear or unified approach. Rather than simply being fact-sensitive, the cases appear to reach different conclusions on similar underlying issues. In particular, there remains no consistent answer to whether employers can operate a self-identification approach to access to single-sex spaces without creating legal risk.
Notably, there is no tribunal guidance that fully engages with the position from a transgender employee perspective. This adds to the uncertainty for employers trying to balance competing rights in practice.
Background
The Trust provides separate male and female changing rooms so that staff who wear uniforms can change on Trust premises. Under its Transition in the Workplace policy, the Trust allowed transgender staff to use the changing room corresponding to their affirmed gender. The policy also required staff who did not wish to share gender-specific facilities with transgender colleagues to use alternative facilities, although the Trust did not provide any suitable alternatives.
One trans female used the female changing room from 2019. Several female nurses raised concerns with management informally in 2023 and formally in 2024. The female nurses subsequently brought claims alleging harassment, victimisation and indirect sex discrimination.
Tribunal findings
The tribunal rejected the victimisation claims and found that the trans female colleague had not personally engaged in conduct amounting to harassment. However, the tribunal concluded that the Trust had subjected the claimants to harassment related to sex and gender reassignment by:
- permitting a colleague who was biologically male and identified as female to use the female changing room;
- requiring the claimants to share that space without providing suitable alternative facilities; and
- handling the claimant’s concerns inappropriately.
The tribunal also upheld the indirect sex discrimination claims. It found that, in practice, the Trust’s approach of allowing access to single-sex changing facilities based on self-declared gender identity prioritised the rights of transgender employees over the rights of other employees not to change in front of a member of the opposite sex.
The tribunal held that, for a coherent and workable structure, the meaning given to “men” and “women” under the workplace health and safety regulations must be the same as under the Equality Act 2010. Following the Supreme Court’s decision in For Women Scotland,this meant biological sex at birth. As a result, the tribunal found that the Trust had breached the relevant regulations.
Following the Supreme Court’s decision in For Women Scotland, the Trust removed the policy and introduced alternative changing arrangements for transgender staff.
Key takeaways
At present, there is no single approach that can be said to be legally “safe”. Employers are, to some extent, navigating a “damned if you do, damned if you don’t” scenario. The Supreme Court’s confirmation that sex in equality legislation means biological sex at birth does not, by itself, resolve practical questions about access to toilets and changing facilities.
The clearest practical points emerging from the cases are:
- avoid assuming one set of rights will automatically prevail over another;
- engage with concerns on all sides in a balanced and respectful way and consult appropriately;
- ensure that you support any policy with workable, practical arrangements, including consideration of alternative facilities; and
- document a careful and proportionate assessment of the impact on different groups.
However, these steps reduce risk rather than eliminate it.
Further clarity may follow once we have updated guidance from the Equality and Human Rights Commission (EHRC). It has updated its Code of Practice on Services and submitted it to the government for approval, and thereafter to lay it before Parliament. The EHRC may also update its Code of Practice for Employers in due course, but there is no timetable for this. Until then, employers should proceed cautiously and expect continued legal uncertainty in this area.
