The end of 2025, and start of 2026, saw four Employment Tribunal (“ET”) judgments being handed down in cases relating to gender identity, protected beliefs, and the use of single-sex facilities in the workplace. These are the first few ET cases to grapple with the Supreme Court’s landmark April 2025 ruling in For Women Scotland Ltd v The Scottish Ministers (“For Women Scotland”), which we explored in our article here.

We take a look at each of these ET judgments in this series of four articles, and consider their implications for employers. We started with Lockwood v Cheshire and Wirral NHS Trust & Others in our article here, and turned to the case of Kelly v Leonardo UK Ltd (“Kelly”) in our article here. Then we looked at Peggie v (1) Fife Health Board and (2) Dr Upton (“Peggie”) in our article here.

Now, in our final article, we turn to Hutchinson & Others v County Durham and Darlington NHS Foundation Trust (“Hutchinson”); in which the ET held that an employer’s policy, of allowing access to workplace changing rooms based on gender identity rather than biological sex, amounted to indirect discrimination, and harassment, related to sex and gender reassignment, and was a breach of the Workplace (Health, Safety and Welfare) Regulations 1992 (“1992 Regulations”).

What were the facts of the Hutchinson case?

County Durham and Darlington NHS Foundation Trust (“Trust”) has a uniform policy which requires staff to change into and out of their hospital uniforms at the start and end of each shift. It provides access to a number of single-sex changing rooms to enable this. The Trust also has a Transitioning in the Workplace Policy (“TIW Policy”) which allowed transgender staff to use the changing rooms of the gender with which they identified. The TIW Policy stated that if any employees did not wish to share “the gender specific facilities”, they should use “alternative facilities” (none were provided).

One of the Trust’s Operating Department Practitioners (“ODP”), Rose, is a transgender woman. Rose started using the women’s changing rooms on a regular basis from around late 2022. In summer 2023, a female Day Surgery Unit (“DSU”) nurse, Ms Hutchinson, became aware of this. Shortly afterwards, rumours circulated that Rose was “not transitioning”, had stopped taking hormones, was trying to have a baby with their female partner, and was “sounding and looking more masculine”.

Ms Hutchinson, and a number of other female nurses, raised complaints about Rose being allowed to use the women’s changing room, with a Ward Sister. They said that they were uncomfortable with it and felt that it was a risk to the privacy and safety of female nurses. Some said that they had been uneasy about raising a complaint, because they were worried that they would be perceived as transphobic or bigoted, and had only done so after hearing that other colleagues shared their views.

A group of managers discussed the concerns. It was decided that it wouldn’t be appropriate to speak to Rose about the situation; in light of the TIW Policy. There was a concern that asking Rose to use alternative changing rooms (or even just having that conversation) could amount to gender reassignment discrimination under the Equality Act 2010 (“EqA”). No one spoke to the nurses who had complained to understand what their concerns were, or visited the changing room in question to carry out an assessment. They were unaware that the changing room did not have separate cubicles for changing, which meant that staff had to change in front of one another.

In September 2023, the nurses were told that they had to accept Rose’s presence in the women’s changing room because of “NHS inclusiveness”. There was discussion of the nurses being “educated” in inclusivity.

In February 2024, the nurses’ Line Manager became aware of their concerns. She reported these to HR and asked for advice. She highlighted that the concerns related to Rose “[referring] to themselves as being female but [being] physically male and living a male life”. She described how female nurses felt afraid and uncomfortable about using the changing rooms; asked for the Trust to provide suitable facilities for transgender colleagues; and stated that “it is not that… female colleagues need educating on the topic”. The concerns were dismissed as “exaggeration”; no resolution was forthcoming.

The nurses felt that the Trust wasn’t listening to them or taking their concerns seriously. Several sought legal advice, and their solicitor sent the Trust a letter of complaint in April 2024, signed by 26 nurses.

Senior managers met with the nurses in May 2024 to discuss their letter of complaint. They had previously suggested that the nurses needed to be “educated” about being more inclusive, to “broaden their mindset”, and to compromise; they said that they would consider the complaints raised and discuss options; however, they did not put forward any firm proposals for resolution. The nurses were of the view that nothing would be done to resolve their concerns.

Eight nurses consequently brought claims in the ET for indirect discrimination related to sex, harassment related to sex and/or gender reassignment, and victimisation, in late May 2024.

The Trust subsequently offered a temporary alternative changing room (and separate locker room) for the 26 nurses who had complained, in the form of an old office and meeting room, but neither complied with fire safety regulations.

What did the ET decide?

The ET upheld the majority of the claims of harassment and indirect discrimination, but dismissed the claim of victimisation.

On the lawfulness of allowing a transgender woman to use the female changing room:

The ET held that the TIW Policy was not lawful because:

  • The Workplace (Health, Safety and Welfare) Regulations 1992 (“1992 Regulations”) require separate changing rooms in the workplace for men and women, except where individual lockable rooms are provided to be used by one person at a time. The terms “men” and “women” in the 1992 Regulations “must logically [mean] the same as under the [EqA]”, and therefore be based on biological sex (i.e. sex at birth). “Once biological males are permitted use of [female] facilities, then it cannot be said… that separate facilities are [being] provided for men and women”. The effect of the TIW policy was therefore that the communal changing rooms were not single-sex in practice, and there were no suitable alternative facilities. The TIW Policy consequently breached the 1992 Regulations.
  • Whilst the EqA does protect transgender employees from discrimination on the grounds of gender reassignment, “there is nothing in the Act… that confers on a transgender employee the right to use the changing facilities that accord with their declared or affirmed gender”. The protected characteristic of gender reassignment “does not translate into a positive right on the part of a trans woman to use the female changing room (or for… a trans man to use the male changing room)”. Suitable alternative facilities should be provided.
  • Preventing a transgender woman from using the women’s changing rooms would be unlikely to infringe their rights under Article 8 (right to private life and family life) or Article 10 (freedom of expression) of the European Convention on Human Rights (“ECHR”), provided that alternative “dignified, adequate changing facilities” were provided. Even if it was an infringement, there would be a very strong case for arguing that it was justified; because it was in accordance with the 1992 Regulations and did not breach the EqA. This may, however, be different if a transgender woman was told to use the men’s changing room.

On the question of whether the Claimants had been harassed in relation to sex and/or gender reassignment:

The ET found that the Trust, through its TIW Policy, had harassed the Claimants in relation to sex and/or gender reassignment because:

  • The TIW Policy allowed “a biological male who is transgender [an unfettered right] to use the female changing room”, and there were no suitable alternative facilities for women to use if they did not feel comfortable with this. This meant that the Trust had, in effect, required the Claimants to share the women’s changing room with a biological man who identified as a woman; despite the fact that a significant number of women had raised concerns about this. The TIW Policy was also unlawful. The Trust had “prioritised the perceived rights of transgender staff over the rights of others such as the Claimants”. This amounted to unwanted conduct relating to both sex and gender reassignment.
  • Though the purpose of the TIW Policy – of creating an inclusive environment for transgender staff – was “admirable and noble”, it nonetheless had the effect of violating the Claimants’ dignity and creating a hostile, humiliating and degrading environment for them. They had each experienced distress and apprehension at the prospect that they may be “exposed in their underwear…whilst changing… and may be observed and looked upon… when in a state of partial undress… [by] a sexually active biological male with a female partner”. They had “lived with this apprehension every working day”, and it had had a significant impact on their “personal dignity and [bodily] privacy”.
  • It was reasonable for the TIW Policy to have had that effect, in the circumstances. The Claimant’s concerns had been ignored, they were told they simply had to accept the situation because of “NHS inclusivity”, and they were told they needed to be educated and to broaden their mindsets. Though the TIW policy had an admirable purpose, it had the effect of giving priority to the perceived needs of transgender staff, over the rights of women to have a single-sex changing area, in circumstances where no suitable alternative facilities were available. In addition, the TIW Policy breached the 1992 Regulations and was unlawful. There was nothing irrational about the perceived and actual effect on the Claimants.

However, Rose was not personally responsible for the harassment; because they had permission to use the changing room, no one from management had spoken to them about the Claimants’ concerns, and they themselves hadn’t behaved improperly in any way. The Trust was liable.

The ET also held that the Claimants had been harassed by the Trust’s inadequate response to their concerns; including by managers telling them that they had to accept the TIW Policy and broaden their mindset. This was unwanted conduct related to sex and gender reassignment, which had the (reasonably perceived) effect of creating a hostile and intimidating environment.

On the issue of indirect discrimination on grounds of sex:

The ET agreed that the Trust had applied a provision, criterion or practice (“PCP”) of:

  1. giving staff access to single-sex changing rooms based on self-declared gender identity; and
  2. prioritising 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 changing room.

The pool affected by the PCPs were the male and female staff who used the changing rooms. This comprised of approximately 300 women, of which 26 (8.6%) had complained, though it was highly likely that others felt the same but were unwilling to add their names to the letter of complaint. Given that 80% of the Trust’s staff are female, far more women than men were affected.

The PCPs put women at a disadvantage compared with men because:

  • More women experience sexual harassment and/or violence than men. Women also experience other societal and cultural pressures that do not apply to men in the same way or to the same extent (for example, “modesty norms” and the consequences of breaching these). This partly explains why, in general, women are more sensitive about having to undress to their underwear in front of members of the opposite biological sex.
  • Women are therefore more likely to experience fear, distress and/or humiliation when having to change in front of a member of the opposite biological sex. Men would be unlikely to react in the same way if a biological woman, who identified as male, used the men’s changing rooms.

These factors were enough to establish “group disadvantage”. The ET rejected the argument that, because plenty of women did not object to getting undressed in front of a biological male, group disadvantage had not been established; it confirmed that not every member of the group needs to be put at a disadvantage by the PCP. In addition, individual disadvantage was also established; the PCPs had put each of the eight Claimants at a disadvantage, because they had resulted in feelings and apprehensions of fear, distress and/or humiliation.

Lastly, the ET looked at whether the PCPs were objectively justifiable as a proportionate means of achieving a legitimate aim, and found that they were not.

  • The ET accepted the Trust had the legitimate aims of (a) sensitively balancing the competing rights of its employees, (b) respecting the gender identity of its staff and (c) adhering to relevant legislation and guidance around single-sex facilities.
    • However, the ET highlighted that this was not, in fact, a case about balancing “competing” rights. Both sets of protected characteristics (sex and gender reassignment) have equal right not to be discriminated against under the EqA. There is “no right in law for a… person with… the protected characteristic of gender reassignment to use a single-sex changing room corresponding with their affirmed gender”. On the contrary, “regulation 24 of the 1992 Regulations requires… separate changing rooms for use by biological men and women” and “there is nothing in the [EqA] that… overrides [this]”. In the ET’s view therefore, the right not to be discriminated against on the basis of gender reassignment “does not equate to a ‘right’ to access [a single-sex changing room on the basis of gender identity], 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”.
  • In any event, there was no attempt by the Trust to strike any kind of balance between the rights of its employees. The ET found that “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, however this was not countenanced”. No-one spoke to Rose, and the temporary solution provided for the nurses who had complained was inadequate and unsuitable. The Trust prioritised “the perceived rights” of one transgender member of staff over “the actual rights” of the 300 biological women using the female changing room. In addition, no risk assessment was carried out, and though an equality impact assessment had been, it was cursory at best.
  • In addition, a less discriminatory option had been available: Rose could have been provided with “alternative suitable and dignified facilities… which respected Rose’s gender identity and… the biological sex of the Claimants… [this] would achieve equal respect for both characteristics”. This would not have amounted to discrimination on the grounds of gender reassignment, or infringed Rose’s ECHR rights. The ET said “it is a fallacy that in order rightfully to respect Rose’s rights Rose must be given access to the female changing room”.
  • The ET therefore concluded that the Trust’s actions had not been proportionate, not least because it had also acted unlawfully; by breaching the 1992 Regulations, harassing the Claimants, and unlawfully interfering with the Claimants’ Article 8 ECHR rights.

The Trust appears to have accepted the ET’s decision, and has apologised to the nurses involved (according to this article by the BBC). It has also changed its TIW Policy, and provided separate changing facilities for Rose.

Key takeaways for employers

The Hutchinson case highlights the challenges that employers face when balancing the rights of employees in the workplace, in circumstances where there are different protected characteristics such as sex and gender reassignment. It will be of particular interest to any organisations reviewing their policies on changing room access in the wake of For Women Scotland, and whilst we await further guidance from the Equality and Human Rights Commission’s (“EHRC”). However, the position here remains far from straightforward.

The approach taken by ETs to date has been inconsistent, and further EHRC guidance is awaited

It is important to bear in mind that Hutchinson is a first instance decision, which means that, though it is binding on the parties, it is not binding on any other ET, or on higher courts.

As flagged in our articles on Kelly (here) and Peggie (here), the three first instance ET decisions on these issues (post For Women Scotland) have been inconsistent, and it remains to be seen whether and to what extent the appellate courts will endorse the various approaches taken. Both Kelly and Peggie are likely to be appealed, and we await the outcomes with interest.

We are also still waiting for the EHRC’s updated guidance on For Women Scotland, and its interpretation of how single-sex spaces (including toilets and changing rooms) should operate. However, in the meanwhile, it is notable that the High Court, in the recent case of Good Law Project v Equality and Human Rights Commission [2026], found that the EHRC’s initial “interim update” on these issues was lawful (that interim update was withdrawn shortly after publication, but details can be found in our articles here and here). Once the EHRC’s updated guidance is published, it will give rise to additional considerations for employers and ETs alike, though it will not change the law.

What should employers be doing in the meanwhile?

Some organisations may already have given consideration to whether their policies around toilets and changing rooms are lawful, whilst others may be waiting for the further EHRC guidance to be published before doing so. We still don’t know when this will happen, but bear in mind that, though the guidance may help organisations to interpret and apply the law to their specific circumstances, it will not change the law as it currently stands. Organisations should therefore not wait for the EHRC guidance to be published before reviewing arrangements; seeking legal advice where necessary.

Of course, in the context of conflicting case law, deciding what approach to take will undoubtedly pose its challenges; and we have explored in depth the kinds of considerations that best practice may involve, in our article on Peggie here.

In addition, the ET in Hutchinson provided some helpful advice on the types of arrangements that may be appropriate and lawful; saying, in that case,“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”. This would likely necessitate the putting in place of a third set of facilities – separate from and in addition to any single-sex facilities provided – for transgender staff to use. Though, of course, that may be easier said than done in practice.

As this area is in flux, and regularly evolving, organisations should ensure that they keep applicable policies under regular review, train managers appropriately, and obtain specialist legal advice where needed.

If you’d like to discuss any of the issues outlined in this article, or training for your staff, please get in touch and our team of experienced Employment lawyers would be happy to help.

Catch up on the other articles in this series:

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further advice or information about management training which we offer.