For the last two weeks a Scottish Employment Tribunal has been hearing the case of a female nurse who has brought claims against her employer, the NHS, for allowing a transgender doctor to use the female changing room. This issue of transgender and female changing rooms has long been discussed in the media, and it isn't surprising that this case is getting a lot of attention in the press.
At the time of writing, the case remains ongoing, so we don't know what the outcome will be. However, in some ways the outcome of the case is slightly less interesting because it will be based on the specific facts of the case. The more interesting point is the overriding problem itself - what is an employer supposed to do when faced with two employees with competing protected characteristics. The idea of having competing protected beliefs is nothing new. After all, people have believed in different religions (or no religions) since time immemorial. However, it is this specific issue of transgender vs gender critical beliefs that comes up time and time again, and it can place employers in a difficult legal position that there is seemingly no safe way out of.
Employment Tribunal
It is now an established point of law that gender critical beliefs – the belief that sex cannot be changed, and it should not be conflated with gender identity – is a protected philosophical belief under the Equality Act 2010. Equally, but conflictingly, gender reassignment – the process of changing a person's sex - is also protected under the Equality Act 2010.
NHS guidance states that transgender people are allowed to use the changing room that aligns with their gender identity. Namely, trans men are allowed to use the male changing room, and trans women the female changing room.
Ms Peggie is an NHS nurse, and in December 2023 she expressed discomfort about sharing a women's changing room with Dr Upton, a transgender woman. Ms Peggie called Dr Upton a man and said she thought it was inappropriate that 'he' was using the female changing room. After the disagreement, both sides reported feeling upset. Dr Upton upset by what Ms Peggie had said, and Ms Peggie upset by Dr Upton changing in the female changing room. This escalated and Ms Peggie raised concerns with her line manager, citing personal discomfort and referencing broader debates about single-sex spaces. Dr Upton subsequently filed a complaint against Ms Peggie for bullying, leading to Ms Peggie's suspension in January 2024. After an investigation, the health board encouraged Ms Peggie to come back to work at a different service.
Ms Peggie subsequently initiated legal action against the NHS and Dr Upton, claiming harassment on the grounds of sex, and harassment on the grounds of her protected gender critical beliefs.
Comment
Whilst we don't know the outcome of this particular case yet, it highlights the real difficulty employers face when the issue of transgender vs gender critical beliefs arises in the workplace. If the NHS had refused to let Dr Upton use the female changing room, this could have given her grounds for a discrimination claim against her employer. Equally, as happened here, allowing Dr Upton to use the women's changing room led to Ms Peggie bringing a harassment claim against her employer. It literally was a case of the NHS being dammed if it did allow Dr Upton to use the changing room, and dammed if it didn't.
Employers must start by recognising that both perspectives are equally protected in law. The Equality Act 2010 treats all protected characteristics equally, it doesn't prioritise one as being more important than another. Any grievance or complaint from either side should be treated sensitively and fairly. In this sort of situation where there are legal risks for the employer on both sides of the argument, depending on the circumstances, the best approach may be to try and find a practical solution that both sides can live with at work. For example, mitigation between the parties in the hope of finding common ground so both sides can move past the issue.
This case is about female changing rooms. But it could happen in any workplace across the UK because the same issues are involved when it comes to transgender people using female or male toilets. Whilst a practical solution can hopefully avoid the need for litigation, there is no getting around the fact that this issue of trans rights vs. gender critical beliefs leaves employers in a very difficult legal position, and the issue isn't going anywhere. Parliament coming to the rescue through new legislation seems unlikely, because the Government would seemingly have to pick one protected characteristic over the other – which is difficult to see happening. Therefore, for the foreseeable future at least, employers are going to have to continue navigating this legal minefield all on their own.
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