The recent influx of Employment Tribunal (“ET”) cases relating to gender identity, protected beliefs, and the use of single-sex facilities in the workplace continues this month; with the case of LS v NHS England (“LS“) (the judgment for which can be found here).

This is the fifth ET case in the last six months or so, to grapple with the Supreme Court’s landmark judgment in For Women Scotland v The Scottish Ministers (“For Women Scotland”); which held that “sex” for the purposes of the Equality Act 2010 (“EqA”) means biological sex at birth (irrespective of Gender Recognition Certificate status) and is a binary concept (i.e. either male or female), but also reiterated that those with the protected characteristic of gender reassignment are protected from all forms of discrimination (as explored in our article here).

These principles from the For Women Scotland judgment have been applied very differently by different ETs, in relation to single-sex facilities in the workplace; in the cases of Kelly v Leonardo UK Ltd, Peggie v Fife Health Board and Others, and Hutchinson and Others v County Durham and Darlington NHS Foundation Trust.

Now, in the case of LS, the ET has held that an employer’s policy, allowing access to single-sex toilets, changing rooms and showers in the workplace based on gender identity rather than biological sex, constituted both indirect sex discrimination and harassment related to sex and gender reassignment, for a female employee.

We take a look at the facts of the case, and key takeaways for employers, in more detail below.

What were the facts of the LS case?

LS works for NHS England as a Senior Programme Manager in one of their Leeds offices. She is Muslim, holds gender critical beliefs, and also suffers from PTSD (as a result of having been the victim of male sexual violence).

NHS England’s workforce in the Leeds offices is comprised of around 3,679 employees; of whom 2,317 (63%) are female, 162 (4%) are Muslim, and around 1 or 2 (0.03% – 0.05%) are transgender women.

LS’s beliefs

Due to her religious beliefs, LS prays five times a day (subject to some exceptions) and, on certain occasions before prayer, performs “Ghusl” (a ritual requiring her to wash her body, which often necessitates having a shower). LS also considers it “improper” to expose parts of her body to (or be naked in front of) any man who is not her husband.

In addition, as a survivor of male sexual violence, LS does not feel comfortable sharing “intimate environments” (including toilets, changing rooms and showers) with men; she says that she fears she would be putting herself at risk of being sexually assaulted if she did so.

LS holds gender critical views; believing that sex is binary, defined at birth, and cannot be changed.

LS agrees that transgender rights should be respected and accommodated, has no issues with working or socialising or generally sharing non-intimate spaces with transgender people; but she does not think it reasonable “to allow men who say they are women… access to women’s spaces” – “their exclusion is the reasonable middle ground for the reasons of safety, dignity and comfort of women”.

NHS England’s policy on access to single-sex facilities in the workplace

In 2017, NHS England drafted and implemented a Trans Equality Policy and Procedure (“TEP”); with input from the LGBTQ+ rights charity Stonewall, and the trade union Unison. The TEP effectively allowed staff to access workplace toilets, changing rooms and shower facilities based on gender self-identification rather than biological sex. It stated that transgender employees should agree with their employer “the point at which [their use of such facilities] should change from one gender to the other”, and that “it is advised that these facilities should be accessed according to the full-time presentation of the employee in the new gender role, irrespective of their stage of transition”. The TEP went on to say “it is not acceptable to insist that a person who is trans or transitioning should use only the [facilities] that are meant for disabled people, or unisex toilets, unless these are the only facilities available or they are preferred by the trans person”.

In October 2022, NHS England sent an email to staff informing them that a colleague was transitioning (to female), would be using the female facilities, and providing a link to the TEP.

LS’s complaints

In November 2022, LS attended a “Trans Awareness” session online, during which she raised concerns that NHS England’s decision to allow transgender women to use female only facilities had effectively turned them into mixed sex facilities. She referred to a Swedish study which she said showed that there is a higher rate of offending by men than women, regardless of any gender transition.

LS subsequently emailed NHS England’s Equality Diversity and Inclusion Manager, to ask whether there had been any staff consultation on the TEP. She also spoke with her Line Manager about her PTSD and told him that she wanted to challenge the TEP but was concerned about doing so. She also asked him where she could find single-sex facilities; stating that these were particularly important for women who have experienced sexual violence and those from religious minorities.

In April 2023, LS raised a grievance about the TEP, which was primarily dismissed on appeal, though some elements were partially upheld. The grievance appeal outcome letter explained that, had LS continued to work at NHS England’s Quarry House office, they would have worked with her and the landlords “to identify whether and, if so, how we could have provided you with access to secure, single occupancy, showering facilities”; but, because LS had relocated to the Wellington Place office, there were already unisex single-occupancy lockable showers available.

LS brought claims in the ET for harassment related to sex and gender reassignment, and indirect sex discrimination. She also brought claims for indirect discrimination related to religion and disability.

What did the ET decide?

Indirect sex discrimination

NHS England conceded that it had a “policy, criterion or practice” (“PCP”) of:

  1. allowing transgender women to access female only facilities in the workplace; and
  2. permitting transgender staff access to single-sex facilities provided for the opposite biological sex.

It also conceded that those PCPs put women, Muslim women, and women with PTSD relating to male sexual violence at a particular disadvantage; and put LS at that disadvantage.

The sole question for the ET to determine in relation to the indirect sex discrimination claim was therefore whether the PCPs could be objectively justified as a proportionate means of achieving a legitimate aim.

The ET found that NHS England had the legitimate aims of:

  1. sensitively balancing the competing rights of its employees and visitors;
  2. respecting the gender identity of its employees and visitors;
  3. adhering to the EqA;
  4. adhering to guidance/published good practice advice in relation to provision of single-sex facilities;
  5. allowing access to appropriate single-sex and gender neutral toileting, showering, washing and changing facilities as far as reasonably possible within the confines of the office building; and
  6. adhering to the provisions of its lease.

However, the ET went on to find that the application of the PCPs had not been a proportionate means of achieving those legitimate aims, because:

  • There is no express legal right for a transgender person to use the single-sex facilities of the gender with which they identify; either under the EqA or the Workplace (Health, Safety and Welfare) Regulations 1992 (“1992 Regulations”).
  • Though NHS England’s concern – that a transgender woman who was not allowed to use women’s single-sex facilities may seek to bring a claim for gender reassignment discrimination – was understandable:
    • any claim for direct discrimination would fail (if the reason for the exclusion was biological sex, and assuming that alternative unisex facilities were available); and
    • the success of any harassment claim would likely depend on whether it was reasonable in the circumstances for the exclusion to have the effect of violating the transgender woman’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them (bearing in mind applicable legislation and relevant case law).
  • Despite the aim of respecting the gender identity of staff being a legitimate one, female staff faced practical issues as a result of the policy of allowing transgender staff to use the single-sex facilities of the gender with which they identified; which NHS England had failed to consider and/or consult over.
  • In any event, NHS England should have considered the alternative (lesser) measure of permitting transgender staff to use alternative gender neutral facilities if they did not wish to use the toilets of their biological sex. This would have had a lesser impact on female staff, who significantly outnumber transgender staff.

NHS England had sought to argue that, along with many other employers, it was applying the EqA as it understood it and in line with guidance and advice it had received at the time (including from Stonewall and Unison). However, the ET rejected this argument, saying that reliance by employers on contemporaneous guidance and/or good practice advice cannot justify an incorrect interpretation of the law; organisations must seek their own legal advice to ensure they are applying the law correctly.

Because the ET found that there had been indirect sex discrimination, it decided that it did not need to consider the complaints of indirect discrimination on grounds of religion and/or disability (which would have failed in any event).

Harassment related to sex and gender reassignment

NHS England accepted that the PCPs amounted to unwanted conduct, and that they had the effect of violating LS’s dignity and/or creating an intimidating, hostile, degrading or offensive environment for her.

The only question for the ET to determine here was therefore whether it was reasonable for the PCPs to have that effect, in the circumstances.

The ET concluded that it was reasonable; both because of LS’s sex, and her gender critical belief. In addition, LS’s religion and PTSD resulting from male sexual violence were relevant here.

The ET acknowledged that it would not be possible for NHS England to “police” access to single-sex toilets, and guarantee that they would only be accessed on the basis of biological sex, but it also said that NHS England could take reasonable steps to ensure that such a policy was complied with by employees and visitors (for example, by explaining the policy to employees and visitors, and warning employees that breaches may be treated as a disciplinary matter).

Key takeaways for employers

The law in this area is notoriously difficult for employers to navigate; and the lack of statutory guidance, conflicting first instance ET decisions, and lack of appellate court judgments since the For Women Scotland judgment, have not helped.

We set out in our previous articles on the ET cases of Kelly, Peggie and Hutchinson the considerations that employers should bear in mind in relation to staff access to single-sex toilets and changing rooms in the workplace; and those considerations continue to apply to a large extent.

However, we are now beginning to obtain some further clarity on these issues. In the recent case of R(Good Law Project and Others) v the Equality and Human Rights Commission, the High Court held that:

  • The Equality and Human Rights Commission’s (“EHRC”) interim update and guidance on access to single-sex toilets and changing rooms (published in April and updated in June 2025, following For Women Scotland) was lawful. That guidance effectively stated that access to such facilities in the workplace should be on the basis of biological sex, not gender identity; and that additional “mixed sex” facilities should be provided for transgender people. It also reiterated that transgender people should not be put in a position where there are no facilities for them to use.
  • Under the 1992 Regulations, facilities in the workplace will only be “suitable” (and therefore compliant) if they are either in separate rooms for men and women (based on biological sex), and/or in the form of single occupancy lockable room(s). There is no legal right for transgender staff to use the facilities which correspond with the gender with which they identify. However, the EqA prohibits discrimination against transgender employees, and a requirement for transgender staff to use the toilets corresponding to their biological sex and/or a failure to provide other suitable facilities for them may constitute discrimination. So, where single-sex facilities are provided in the workplace, in accordance with the 1992 Regulations, additional suitable facilities should also be provided for transgender staff (which could be in the form of single-occupancy and/or unisex facilities). Requiring transgender staff to use unisex or individual lockable toilets (instead of single-sex facilities) is not likely to be discriminatory. Employers should bear in mind that the requirements of the 1992 Regulations are a floor, not a ceiling, and should be guided by “common sense and benevolence”.

In addition, the recent publication of the draft updated Equality and Human Rights Commission (“EHRC”) Services, Public Functions and Associations Code of Practice (“Services Code”) may also assist. Though the Services Code (when it eventually comes into effect) will apply to a public-facing service provision context, rather than an employment/workplace context, the principles contained in it are likely similar to those which will be contained in the EHRC’s Employment Statutory Code of Practice (“Employment Code”) once that is updated (it is hoped, imminently). On the issue of single-sex toilets and changing rooms in a service provision context, the Services Code effectively confirms that (where these are lawfully provided) access should be according to biological sex rather than gender identity, and that suitable alternative facilities (such as, for example, single occupancy or gender neutral) should also be provided for transgender people to use. Transgender people should not be left in a position where there are no facilities for them to use; this is likely to be discriminatory. The updated draft Services Code can be found here and our recent article on it can be found here.

While we await the publication of the updated Employment Code, it is important for employers to bear in mind that the clear message from the Government, EHRC and courts has been that employers should not wait for updated guidance in order to ensure that they are complying with the law. As the ET in LS highlighted – reliance by employers on contemporaneous guidance and/or good practice advice (or lack thereof) cannot justify an incorrect interpretation of the law; organisations must seek their own legal advice to ensure they are applying the law correctly.

Best practice here will remain, by way of example (and non-exhaustively):

  • ensuring that your workplace fosters respect and inclusivity for, and balances the needs and rights of, all protected groups, including where the latter are in opposition;
  • ensuring that staff have access to appropriate, suitable facilities;
  • having clear, legally compliant policies in place, which are up to date, communicated to staff and kept under regular review;
  • adopting a consultative approach and carrying out staff surveys, equality impact assessments and/or risk assessments where appropriate;
  • making sure that any complaints are responded to and addressed promptly, sympathetically and with an open mind;
  • ensuring organisational understanding of relevant statutory provisions (including both the EqA’s provisions around protected characteristics and prohibitions on discrimination, and the 1992 Regulations’ provisions regarding single-sex toilet and changing rooms in the workplace) and case law; and
  • providing appropriate training for managers and HR teams.

If you would like to discuss anything outlined in this article, 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.