The end of 2025, and start of 2026, has seen 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 – the cases of Lockwood v Cheshire and Wirral NHS Trust & Others (“Lockwood”), Kelly v Leonardo UK Ltd (“Kelly”), Peggie v (1) Fife Health Board and (2) Dr Upton (“Peggie”) and Hutchinson & Others v County Durham and Darlington NHS Foundation Trust (“Hutchinson”).

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 the new judgments in this series of three articles, and consider their implications for employers. We started with Lockwood in our article here, which looked at whether a non-binary employee could bring a claim for discrimination on the grounds of gender reassignment in respect of alleged misgendering. Now we turn to the case of Kelly, in which the ET held that an employer’s policy, allowing access to single sex toilets in the workplace based on gender identity rather than biological sex, did not – in the very specific circumstances of the case – constitute discrimination or harassment on grounds of sex, for a female employee.

What were the facts of the Kelly case?

Ms Kelly has been employed by Leonardo as an Engineer for 19 years; she is currently the People and Capability Lead in their Edinburgh office. Leonardo is a global security company in the aerospace, defence and security sphere. It employs around 9,500 staff in the UK; 2,500 of which work in the Edinburgh office. Of the latter, around 20% are women and around 0.5% are transgender. Both staff and visitors are subject to stringent security vetting before being allowed to access Leonardo’s premises.

Ms Kelly holds “gender critical” beliefs. Specifically, she believes that sex is binary (either male or female), and immutable (unable to be changed), and should not be conflated with gender identity. Gender critical beliefs are protected under the Equality Act 2010 (“EqA”), following the case of Forstater v CGD and Others [2021].

Since June 2023, access to the toilets on Leonardo’s premises has been “individual led” and based on self-identified gender rather than biological sex. This means that transgender staff are allowed to use the toilets of the sex which mirrors their gender identity. From around 2022, Ms Kelly became aware that two or three transgender women colleagues were using the women’s toilets on the floor on which she worked.

The toilet facilities on that floor comprised of two “blocks” of women’s toilets (each in a room badged as female, with separate toilet cubicles and shared wash basins), two blocks of men’s toilets (each in a room badged as male, with urinals, separate toilet cubicles and shared wash basins), and an accessible / disabled toilet (in a single occupancy room, with toilet and wash basin). There were, in addition, six single occupancy toilets spread across the other floors of the building (as well as additional accessible / disabled toilets on each of the other floors).

Ms Kelly queried the toilet access policy in June 2023 and, after months of discussion, raised a grievance about it in June 2024. She asserted that access to the women’s and men’s toilet blocks should be based on biological sex rather than self-identified gender, and that biological men who identify as women should not be permitted to use them. She argued that women needed to have use of a single sex space for dignity, privacy, comfort and safety, and to deal with the consequences of menstruation, perimenopause (Ms Kelly herself being perimenopausal), menopause, pregnancy, breastfeeding and religious practices (such as readjusting headwear). She also complained that the policy prioritised “the views of those subscribing to gender self-identification theory above those who hold protected gender critical beliefs… and so do not subscribe to the theory”, as well as prioritising the needs of a few transgender colleagues over hundreds of female colleagues. She stated that the toilet access policy amounted to discrimination and harassment related to sex and/or belief. She suggested that an alternative solution would be to have a number of unisex single occupancy toilets, in addition to single sex toilet blocks. She said that she had not raised a grievance sooner, for fear of being labelled transphobic, and flagged that a colleague had told her that her gender critical beliefs (specifically her views on the toilet access policy) were a “hate crime”.

The grievance, and ensuing appeal, were not upheld, on the basis that Leonardo believed their policy to be both lawful and a means of ensuring inclusivity for transgender colleagues. They did, however, also make a number of the single occupancy toilets universal / mixed sex.

Ms Kelly brought claims for direct discrimination, indirect discrimination and harassment on grounds of sex. Notably, she did not bring any claims on grounds of her gender critical beliefs.

What did the ET decide?

The ET dismissed all of Ms Kelly’s claims, on the following basis:

  • In its view, Leonardo had complied with the requirement, under the Workplace (Health, Safety and Welfare) Regulations 1992 (“1992 Regulations”), to provide “suitable and sufficient” toilet facilities separately for men and women – notwithstanding its policy of allowing access based on gender identity rather than biological sex. The women’s toilet block had separate lockable toilet cubicles (albeit not fully enclosed, and with separate wash basins in shared communal spaces), and this, in the ET’s view, was sufficient to fulfil the requirement of protecting bodily privacy and moral propriety between the sexes. In any event, there were also a number of single occupancy toilets (in separate rooms, with wash basins) which could be used. The ET also held that the 1992 Regulations do not necessarily require that access to toilets be based on either a biological sex or gender certificated approach, as both are potentially unworkable in practice (because the biological sex and/or certificated gender of users may not be known). This, as a first instance decision, is a non-binding and as yet untested interpretation of the 1992 Regulations.
  • Ms Kelly had not been treated less favourably than a man because of her sex (and therefore had not been directly discriminated against), by a toilet access policy which allowed transgender women (i.e. biological men who identified as women) to use the women’s toilets. The policy applied equally to women and men; transgender women were permitted to use the women’s toilets, and transgender men were permitted to use the men’s toilets. 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.
  • The ET found that the toilet access policy did not put female staff at a particular disadvantage compared to male staff, and therefore found that it was not indirectly discriminatory. The ET acknowledged that (generally speaking) women are more likely to be fearful of men than men are of women; men are more likely to be the perpetrators of assault and sexual crimes than women; and women are more likely to be victims of sexual crimes than men. However, it rejected the argument that, in these specific circumstances, the policy made female staff (including Ms Kelly) more fearful, or put them at a greater risk of violence and sexual assault. It also rejected the argument that the policy had a greater impact on the privacy of female staff (including Ms Kelly) than on the privacy of male staff; it did not agree that women needed greater privacy than men to deal with issues relating to menstruation, perimenopause, menopause, pregnancy, etc. Relevant considerations here were that (a) staff were subjected to stringent security and vetting checks, (b) the numbers of transgender staff were very small, (c) the toilets in the women’s block were in private cubicles (it did not, in the ET’s view, matter that the wash basins were in communal areas) and staff had access to single occupancy toilets if preferred, and (d) none of the female staff other than Ms Kelly had complained about the policy, which the ET felt suggested that no one else had an issue with it). The ET went on to find that, even if any disadvantage had existed, this would have been minor, and would in any event be objectively justified as a proportionate means of achieving the legitimate aims of (a) treating transgender employees (who have the protected characteristic of gender reassignment) lawfully and with respect according to their gender identity, and (b) fostering an inclusive workplace environment for transgender staff.
  • Though the ET accepted that the toilet access policy amounted to unwanted conduct related to sex (because Ms Kelly believed that access should be based on biological sex rather than gender identity), and though it also accepted that it was possible for a toilet access policy based on self-identified gender to constitute harassment, it went on to find that – in the particular circumstances of the case (and despite Ms Kelly’s evidence to the contrary) – the policy had not had the effect of violating Ms Kelly’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her, and therefore did not constitute harassment. Relevant considerations here included the fact that Ms Kelly had not raised a grievance immediately on becoming aware that transgender colleagues were using the women’s toilets (despite her evidence that she had delayed doing so because she feared being labelled as transphobic); she had not stopped using the toilets in question altogether (though she did often use the single occupancy toilets as an alternative); she had not had any “negative encounters” in the women’s toilets; and the policy had (in the ET’s view) had no practical effect on her dignity or environment.

Ms Kelly has indicated that she intends to appeal this decision.

Key takeaways for employers

This is the first ET case, post For Women Scotland, to look at the issue of gender identity in the context of access to single sex toilet facilities in the workplace. In these particular circumstances, the ET decided that a toilet access policy based on gender identity rather than biological sex was not discriminatory towards, and did not harass, a female employee because of her sex. However, that finding was very specific to the facts and context of the case.

One significant point to bear in mind, is that Ms Kelly did not bring a claim for discrimination or harassment on the grounds of her protected gender critical beliefs. Such a claim may have had a greater chance of success; particularly in circumstances where the employer appears to have been somewhat dismissive of gender critical views.

Another significant point to bear in mind, is that this is a first instance decision; 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 gender identity and access to single sex facilities in the workplace, has not been consistent. For example:

  • In Peggie, the ET found that though it was not necessarily inherently unlawful for transgender women to use female single sex spaces in the workplace (in this instance, a changing room), neither was it automatically lawful. It held that, where there are conflicting protected characteristics (in this instance, gender critical beliefs and gender reassignment), an objective justification test should be carried out. In this case, it had been lawful for a transgender woman doctor to use the female changing rooms until a female colleague with gender critical beliefs (a nurse) raised a complaint. Once the complaint had been raised, the doctor’s continued use of the changing rooms constituted harassment of the nurse by the employer; until such time as alternative arrangements were made, so that the doctor and nurse no longer had to use the changing room at the same time. In addition, the employer’s handling of the nurse’s complaint (including lengthy delays) had also been discriminatory.
  • In Hutchinson, the ET found that a hospital’s policy of allowing staff to access single sex changing rooms based on gender identity – which had resulted in a transgender woman nurse using the women’s changing rooms – had resulted in the harassment of a group of female (gender critical) nurses, because it had violated their dignity and created an intimidating environment for them. In that case, it had not been acceptable for the employer to tell the female nurses to use an alternative (less suitable) room to change in.

We will explore both of the above cases in more detail in our next article in this series.

The Kelly decision will likely be subject to appeal (Ms Kelly has already indicated her intention to do so) and it remains to be seen whether appellate courts would endorse the approach adopted in it.

We are also still awaiting the Equality and Human Rights Commission’s (“EHRC”) updated guidance, on the implications of For Women Scotland and how it impacts the way in which single sex spaces (including toilets) should operate. Once that is published, it will give rise to additional considerations for employers and ETs.

Organisations consequently should not necessarily seek to rely on Kelly when deciding what approach to take in relation to toilet access in the workplace; though it does give some indication of the sorts of issues to bear in mind. Best practice here will remain ensuring that staff have access to appropriate facilities, adopting a consultative approach, carrying out risk assessments where appropriate, and responding promptly and sympathetically to any concerns raised. Not only to mitigate legal risk for the organisation, but also to make sure that staff feel valued and supported.

We set out below some of the practical steps employers can consider taking, to reduce both legal and employee-relations risks (this list is not intended to be exhaustive):

  • Ensure that your workplace fosters inclusivity, and balances the needs and rights of different protected groups, including where the latter are in opposition. This will involve being respectful and inclusive towards transgender colleagues, but also similarly towards colleagues with protected gender critical and/or religious beliefs. It is important to remember that there is no hierarchy of protected characteristics; the needs and rights of each must be carefully balanced.
  • Staff surveys, consultations, equality impact assessments, and risk assessments can be helpful here. These enable organisations to have a constructive dialogue with staff, assess their various needs and the options available for meeting these, and reach a reasoned, balanced approach on how best to proceed. It is important that decisions about access to single sex facilities in the workplace are consultative, evidence-based and proportionate; taking into consideration the nature of the workplace in question, the specific options available, and weighing up the risks and benefits for different protected groups. In the Kelly case, the ET criticised the employer for not having consulted with (or informed) staff about its proposed approach to toilet access, and for not having carried out an equality impact assessment or considered the impact of the policy on all protected groups. Clearly, failing to carry out such steps will make it much harder to justify any chosen course of action.
  • Make sure that you respond to and address any complaints promptly and sensitively. In Kelly, the employer took a significant amount of time to resolve the concerns that were raised, and was somewhat dismissive of Ms Kelly’s views, even though they constituted a protected belief. Though the question of discrimination on grounds of protected belief was not one which Ms Kelly raised with the ET, the outcome for the employer in this case may have been different if she had.
  • Keep up to date on relevant case law. There are currently conflicting first instance decisions regarding the issues of gender identity and access to single sex facilities in the workplace, as we’ve outlined above. Employers should make sure that they understand both the statutory provisions in the 1992 Regulations concerning the provision of single sex toilet facilities in the workplace, and those in the Equality Act 2010 relating to protected characteristics and the prohibition of discrimination (and should not necessarily rely on first instance case law when interpreting either). Further case law developments should be monitored, to ensure an understanding of the current legal position. Bear in mind too that the EHRC is currently in the process of updating its Codes of Practice on these issues, which could change the landscape here further.

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

If you’d like to discuss any of the issues 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 or information about management training which we offer.