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.

Now we turn to Peggie v (1) Fife Health Board and (2) Dr Upton (“Peggie”), in which the ET held that, though it had not initially been unlawful for a hospital to give a transgender woman doctor permission to use the female staff changing room, once a gender critical female nurse had complained about the arrangements, the failure to revoke permission became discriminatory harassment; until such time as alternative arrangements could be put into place, so that the doctor and nurse no longer had to share a changing room.

In our fourth and final article, we will turn to the case of Hutchinson & Others v County Durham and Darlington NHS Foundation Trust (“Hutchinson”) (see the article here).

What were the facts of the Peggie case?

Ms Peggie (a female emergency department nurse) believes that biological sex cannot be changed and should not be conflated with gender identity. She also believes that those who are biologically male, including transgender women, are not entitled to use female-only spaces such as changing rooms. These beliefs are commonly referred to as “gender critical” or “sex realist”, and are protected under the Equality Act 2010 (“EqA”) (following Forstater v CGD Europe and Others [2021]).

Dr Upton is a transgender woman colleague of Ms Peggie’s, with the protected characteristic of gender reassignment.

In August 2023 and October 2023, Ms Peggie encountered Dr Upton in the female staff changing room at work. She raised a complaint with her line manager after the first incident; saying that it made her feel awkward, embarrassed and uncomfortable, and that the doctor shouldn’t be using the women’s changing rooms because it was not appropriate. The line manager told Ms Peggie that transgender women staff had a right to use the women’s changing rooms, and that Ms Peggie could use an alternative changing area if she wished.

On 24 December 2023, Ms Peggie, who was going through the menopause, had unexpected menstrual bleeding during her night shift and needed to change her clothes. On entering the changing room, Dr Upton was there. Ms Peggie spoke to the doctor; saying that she perceived Dr Upton to be a man, and it was not appropriate to be using the women’s changing rooms; she said that she felt intimidated by the doctor’s presence (she had had “bad history with men”, having been sexually assaulted as a teenager), and that lots of others felt the same; she asked about the doctor’s chromosomes; she commented that the situation was like that of a transgender woman prisoner in a women’s prison.

Following this incident, Dr Upton made a complaint of bullying and harassment against Ms Peggie, and later raised concerns about her patient care. Ms Peggie was placed on special leave from 30 December 2023, and then suspended, while the hospital investigated the complaint. She returned to work in April 2024, on a different rota to Dr Upton, whilst the disciplinary investigation was still ongoing. The investigation concluded in December 2024, with the recommendation that Ms Peggie attend a disciplinary hearing. The disciplinary hearing took place in June 2025; Ms Peggie did not attend. The disciplinary panel decided that the evidence against Ms Peggie was inconclusive, and so no further action should be taken; they did, however, arrange a “facilitated reflective practice discussion” so that she could consider her decision-making in relation to the December 2023 incident.

Ms Peggie brought claims in the ET for direct and indirect discrimination, and harassment, related to sex and/or belief, and victimisation.

What did the ET decide?

The ET upheld the harassment claim in part, but dismissed all of the other claims.

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

The ET concluded that “it is potentially but not necessarily lawful under the [EqA] to permit a trans woman to use a female only space, such as the changing room, in the context of work”; it would depend on the specific circumstances.

The ET noted that, in this instance, both Ms Peggie and Dr Upton had protected characteristics that were (in its view) in conflict with one another; but neither took precedence over the other.

The ET pointed out that the EqA does not contain a specific test that can be applied where there is conflict between protected characteristics in a workplace context. It decided that, in such circumstances, employers should apply the objective justification test set out in Bank Mellat v HM Treasury (No.2) [2013] UKSC 39 to any decision-making process, and ask whether:

  1. the objective of the measure in question is sufficiently important to justify the limitation of a protected right (the “importance test”);
  2. the measure is rationally connected to the objective (the “connection test”);
  3. there is no less intrusive measure that could be used without unacceptably compromising the achievement of the objective (the “measure test”); and
  4. the importance of the objective and the extent to which the measure will contribute to its achievement, outweighs severity of the measure’s effects on the rights of those to whom it applies (the “balance test”).

In relation to the specific question of whether a transgender woman should be permitted to use a female changing room in the workplace, the ET’s view was that the factors to be weighed in the balance included:

  • The stage of transition that the transgender person has reached, any changes to physiological attributes of sex (via surgery or otherwise), and how they present.
  • The views that have been expressed by staff (including the transgender individual(s) and others using the facilities), and whether any objections or complaints have been raised (including on what basis, and how many).
  • The other suitable changing facilities available.

In these particular circumstances, the ET found that it had initially been lawful for the hospital to give Dr Upton permission to use the women’s changing room. However, once Ms Peggie objected, it became unlawful, and permission should have been revoked at that point on an interim basis, while alternatives were considered. Once Ms Peggie and Dr Upton were permanently put on different rotas, which meant that they would not be using the changing room at the same time, it once again became lawful (in light of the fact that no one other than Ms Peggie had complained).

Notably, the ET did not consider the application of the Workplace (Health, Safety and Welfare) Regulations 1992 (“1992 Regulations”), on the basis that it believed it did not have jurisdiction to do so (because breaches of these regulations are a criminal rather than civil matter).

On the question of whether Ms Peggie had been harassed:

The ET concluded that Dr Upton’s use of the changing room when Ms Peggie was present was unwanted conduct related to sex. This had created an intimidating, hostile, humiliating environment for Ms Peggie, and it had been reasonable for her to perceive it as such. It therefore amounted to harassment by the hospital (but not by Dr Upton, who had been given permission to be in the changing room by the hospital). However, the harassment had only lasted for the period during which the permission granted to Dr Upton to use the women’s changing room had been unlawful (as outlined above).

The ET also found that Ms Peggie’s comments to Dr Upton in December 2023 were, for the most part, a permissible expression of her gender critical beliefs – she was entitled to say she didn’t think Dr Upton should be in the female changing room, that she felt intimidated, and that women had a right to feel safe. However, questioning Dr Upton about chromosomes and raising the issue of a transgender woman prisoner in a women’s prison had been an impermissible expression of her beliefs – because it was intrusive, confrontational and proselytising – and these comments had harassed Dr Upton on the basis of gender reassignment. It would have been preferable for Ms Peggie to raise her concerns with the hospital, rather than directly with Dr Upton.

The ET went on to find that the hospital had also harassed Ms Peggie by:

  • taking an unreasonable length of time to investigate the complaint Dr Upton had made about her;
  • “ambushing” her during the investigation with allegations that her behaviour had affected patient care; and
  • initially instructing her not to discuss the case with anyone else.

On the issue of indirect discrimination:

The ET held that the hospital’s decision to allow Dr Upton to use the women’s changing room did not amount to indirect discrimination, because there was insufficient evidence that the “provision, criterion or practice” of doing so put women at a particular disadvantage compared to men. No one other than Ms Peggie had complained; and the ET felt that the “expert” evidence it had seen – on the question of whether women were put at a disadvantage by having to share a changing room with transgender women (i.e. biological men), in comparison to men having to share a changing room with transgender men (i.e. biological women) – was insufficient. The ET commented “we…took into account [For Women Scotland] which to some extent supports the proposition that women may be disadvantaged by an adult man being in the changing room. What was not clear however is the extent of disadvantage when the person in the room is [also] a trans woman. There was no evidence we regarded as reliable on that aspect.”

Ms Peggie has confirmed that she will be appealing this decision.

Key takeaways for employers

The Peggie 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, religion or belief, 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 (“EHRC”). However, the position here is 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 Peggie is an untested first instance decision which is subject to appeal; it is not binding on other ETs (or indeed higher courts), which may well decide such matters differently in future cases.

Bear in mind too that the approach taken by ETs to date, on the issue of allowing access to single-sex toilets and changing rooms in the workplace based on gender identity rather than biological sex, has not been consistent. For example:

  • In Kelly, the ET found that the employer’s policy, in relation to toilets, did not constitute discrimination or harassment on grounds of sex, for a female gender critical employee. The ET was also of the view that this policy was not a breach of the 1992 Regulations.
  • In Peggie, the ET found that the employer’s policy, in relation to changing rooms, was lawful until a complaint was raised, after which it amounted to harassment of a female gender critical employee (until such time as alternative arrangements were made). The ET held that, where there are conflicting protected characteristics, an objective justification test should be carried out. The ET was of the view that the 1992 Regulations did not apply to its decision.
  • In Hutchinson, the ET found that the employer’s policy, in relation to changing rooms, resulted in the harassment of a group of female nurses. It had not been acceptable for the employer to tell the female nurses to use an alternative (less suitable) room to change in. In addition, the policy was a clear breach of the 1992 Regulations.

The Kelly and Peggie decisions are subject to appeal, and it remains to be seen whether appellate courts would endorse the approach taken in either.

We are also still awaiting the EHRC’s updated guidance, on the implications of For Women Scotland and how it impacts the way in which single-sex spaces (including toilets and changing rooms) should operate. However 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 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).

In the meanwhile, there is a lack of consensus on how best to balance “competing” protected characteristics

The pragmatic approach taken by the ET in Peggie – of introducing an objective justification test to decision-making processes which involve competing protected characteristics – is an appealing one.

However, there has been some criticism of the ET’s view that the appropriateness of changing room access may depend on a transgender person’s appearance and surgical history; this is an approach that is likely to pose significant challenges. Similarly, there has been criticism of the view that the lawfulness of access will depend in part on whether and to what extent staff have proactively complained; this approach appears to place the onus on determining legality on employees, whilst also ignoring the very real risk that staff may not feel able to raise such issues with their employers for a variety of reasons.

In addition, in Hutchinson, the ET disagreed that the protected characteristics of sex and gender reassignment were in conflict at all, finding that it was possible to respect both without the need for any objective justification test.

There is also a lack of consensus on what does and does not amount to indirect discrimination

It is striking that the findings of the ET in Peggie (and Kelly), on the question of indirect discrimination, are in direct contrast to those in For Women Scotland and Hutchinson.

In Peggie, the ET felt that there was insufficient evidence to establish that a policy, permitting changing room access based on gender identification rather than biological sex, places women at a particular disadvantage in comparison to men. Similarly, in Kelly, the ET rejected the argument that the presence of a transgender woman in the women’s toilets would cause a greater violation of a female user’s bodily privacy than the presence of a transgender man would cause a male user in the men’s toilets.

However, in Hutchinson the ET was clear that it believed that women are placed at a disadvantage when having to share changing room facilities with transgender women (i.e. biological men) in comparison to men having to share changing room facilities with transgender men (i.e. biological women), because women are more likely to experience distress, fear and/or humiliation when sharing a changing room with a member of the opposite sex than men are. Similarly, the Supreme Court in For Women Scotland effectively said, in reference to changing rooms, that female single-sex spaces (to the exclusion of transgender women) may be essential for the protection of women’s safety, autonomy, privacy and dignity.

And the role of the 1992 Regulations, and their interpretation, are unclear

As mentioned above, though Peggie did not give consideration to the 1992 Regulations, in stark contrast, the ETs in Kelly and Hutchinson both took these into account, albeit making very different findings in relation to them.

In Kelly the ET found that the 1992 Regulations did not make a policy of toilet access on the basis of gender identity unlawful in principle; whereas in Hutchinson the ET found that allowing a transgender woman to use the women’s changing rooms was a clear breach.

Bearing all of this in mind, what kinds of considerations might best practice involve?

Organisations should not necessarily seek to rely on Peggie (or any of the other first instance ET decisions discussed above) when deciding what approach to take in relation to changing room access in the workplace; though it does give some indication of the sorts of issues to bear in mind.

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

  • ensuring that your workplace fosters 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;
  • adopting a consultative approach and carrying out staff surveys, equality impact assessments and/or risk assessments where appropriate,
  • making sure that you respond to and address any complaints promptly, sympathetically and with an open mind; and
  • keeping up to date on relevant case law, and 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.

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.