A Muslim employee at NHS England has won her claims of indirect discrimination and harassment over its policy to allow transgender colleagues to use toilets and changing rooms that correspond with their gender identity rather than their biological sex. Rob Moss examines the employment tribunal judgment.

The anonymous claimant, who is referred to as LS and is still employed by NHS England, had her case heard at Leeds Employment Tribunal for six days at the end of March.

LS is female, Muslim and holds gender-critical beliefs. She also has post-traumatic stress disorder relating to male sexual violence. She pursued her claims relating to these four characteristics.

In October 2017, NHS England published its trans equality policy and procedure, documents that confirmed that trans colleagues could use the single-sex facilities (toilets, changing rooms and showers) that corresponded with their gender identity once they reached “full time presentation… in the new gender role”.

LS began working for NHS England at the same time, most recently as a senior programme manager.

The complaint

In October 2022 LS received an email about the transition of a colleague – referred to in the hearing as “person X” – and attended a “trans awareness” session on 9 November 2022. After this, she raised complaints to NHS England about the policy and the wording of the procedure.

She emailed Erk Gunce, NHS England’s HR, OD and EDI manager, saying: “Thank you for organising the learning session on trans and non-binary. I’d like to know what the process/discussion/consultation of cis-women, religious minorities and ethnicities was when NHSE formed its trans policy and the decision not to exclude trans persons from single ‘opposite sex’ facilities like toilets and changing rooms when gender neutral facilities have also been offered. There seems to be a complete lack of consultation on that and I’d like to clarify if that was the case, since you mentioned it was something not considered necessary.”

In an email with HR colleagues published in the judgment, not shared with LS at the time, Gunce stated that he “did not say that consultation was not necessary” and that he had talked about equality impact assessments. Nevertheless he said he would “appreciate a steer” on how to handle such questions at future sessions.

LS emailed Gunce again on 17 November, and he replied four days later that he was seeking further information. The claimant chased again for a response. She then sent a “more formal email” to Gunce on 12 January 2023, stating that she was considering taking matters further.

He provided the claimant with the contact details for Matthew Baker, NHS England’s Acas liaison contact and LS discussed the process for raising issues with him.

On 9 February, in what was soon confirmed by her manager and HR to be an administrative error, LS received a letter from the acting director of people and OD stating that her role was at risk of redundancy. LS accepts the letter was sent to her by mistake, but stated that at the time it left her fearing that it was sent in retaliation for her raising concerns about the trans equality policy.

Grievance

She raised a grievance about the policy in April 2023, which faced “considerable delay” – delay that the tribunal panel said was relevant to her claims of harassment. It was heard by a panel on 30 November and was rejected. An appeal was heard on 3 May 2024, which partially upheld some elements but rejected most of her points.

During the grievance appeal hearing, the panel asked LS if a trans woman who had “full reassignment surgery and looks to a full extent as a female” should be able to use women’s facilities.

LS said: “I think it depends if they pass or not. Trans women do use female facilities, some look obviously more male than others and I recognise that it’s possible that I may have been in the same toilet as a trans woman and not recognised that they are trans. I feel the policy has been made with this small minority within a minority in mind. To fully pass as a female is very rare.”

The panel also asked her: “At what point do you consider a trans woman to be a woman?”

LS responded: “Never, human beings can’t change sex. I think you are asking about the [Gender Recognition Certificate]. I understand GRC was originally developed for other purposes and not for facilities. For things like passport, pensions and other purposes of documentation. I don’t think GRC is enough to change someone’s biological sex.”

The appeal outcome letter explained that had she continued to work at Quarry House, NHS England 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 Wellington Place, there were already unisex single-occupancy lockable showers.

LS took maternity leave twice over the relevant period, once in 2021-22 and again in 2023-24, during which she filed her tribunal claim.

Tribunal hearing

During cross-examination at the tribunal, LS said: The claimant stated during cross-examination: “The grievance process itself has been polite and I did not receive any criticism and was not shut down in those interviews by any panel members. But I felt that everyone lacked insight throughout the investigation because how can you tell a rape victim that she should go elsewhere in the gender neutral toilets because she does not want to share facilities with a male.”

During her hearing, the tribunal heard that LS considers it improper to expose most parts of her body to any male who is not her husband, and particularly improper to be naked. She required a changing room and showers in Quarry House, the Leeds office that NHS England shared with among others the Department for Work and Pensions (the leaseholder), for the purposes of exercise and, in line with her religious beliefs, these facilities were unsuitable.

LS also considers there is a religious obligation on her, subject to certain exceptions at certain times, to pray five times a day at specified times. On certain occasions before prayer, she told the tribunal she was obliged to perform “ghusl”, a Muslim ritual requiring her to be naked to wash her body. If required to do this in the workplace, she would take a shower.

With regards to her PTSD, she told the tribunal that, if she put herself into an intimate environment where a male may be present, she would be putting herself at risk of being sexually assaulted by that male. This fear is a symptom and trigger of her PTSD and is not directed at any specific male colleague, including person X.

She also submitted to the tribunal: “I view my gender-critical position as the middle ground where everyone’s rights are respected and accommodated. I do not care what a male wears for work as long it is work appropriate. However, it is not reasonable to allow men who say they are women and be allowed access to women’s spaces…”

The tribunal also heard that LS is an experienced healthcare professional and considers herself to be an advocate for proper healthcare provision for trans people, of whatever gender, in accordance with their legal rights. She also considers herself to be an advocate for the legal rights of females in the workplace and would reject any suggestion that she is transphobic. She does not object to working with, or socialising with, or generally sharing non-intimate space with trans people.

Although the matter arose after person X made it known that they now identified as female and intended to use female-only facilities, the claim was not motivated by any hostility to person X, who has since left NHS England, the tribunal heard.

The tribunal also heard from NHS England about the demographic make-up of its workforce and its Leeds offices. It estimated that around 2,317 employees were female, of whom 162 were Muslim, but that only one or two people were trans women.

Judgment

The employment tribunal upheld the following claims:

  • LS’s complaint of indirect discrimination in relation to sex under the Equality Act 2010 in relation to NHS England’s trans equality policy and procedure
  • Her complaint of harassment related to sex and gender-critical beliefs as a result of the policy and procedure, and
  • LS’s complaint of harassment related to her gender critical beliefs in that the procedure had the effect of violating her dignity or creating the proscribed environment on the grounds of her gender critical beliefs.

It was accepted by NHS England that LS and women (both Muslims and those with PTSD) were subject to a disadvantage as a result of its policy.

The tribunal upheld LS’s indirect sex discrimination because NHS England failed to show that the policy was a proportionate means of achieving a legitimate aim, because:

  • there is no express legal right for a trans person to use the single-sex facilities of their gender identity under the EqA 2010 or the Workplace (Health, Safety & Welfare) Regulations 1992
  • despite the aims of respecting the gender identity of its staff, NHS England’s witnesses accepted that there were practical issues faced by female staff caused by allowing trans staff to use the single-sex facilities of their gender identity when adopting the policy, and
  • NHS England should have considered an alternative measure (such as gender-neutral facilities) to permitting trans staff using the single-sex facilities of their assumed identity. This would have had a lesser impact on female staff who significantly outnumber the number of trans staff employed by NHS England.

NHS England accepted that the policy and procedure amounted to unwanted conduct but not that it had the effect of violating the LS’s dignity or creating a hostile/intimidating environment for her.

The tribunal held that it was reasonable for NHS England’s policy to have the effect of harassment on LS in relation to both her sex and gender-critical belief. In addition, it was reasonable for NHS England’s procedure to have the effect of harassment on the claimant in relation to both her sex and gender critical belief.

It distinguished that it was not the purpose of the policy/procedure to harass LS, but it held that it did have that effect.

The judgment highlighted that NHS England submitted that, along with many other employers, it was applying the Equality Act as it understood it at that time. Vivien Hodgskiss, deputy director of operational services, people and OD at NHS England gave evidence that the respondent relied on the advice of external bodies, including Stonewall, Unison and other trade unions, in addition to feedback from its staff network.

The decision stated: “However, reliance on contemporaneous guidance or good practice advice cannot justify an incorrect interpretation of the law. Employers must seek their own legal advice and ensure that they are applying the law correctly.”

It added: “…there is no express legal right for a transgender person to use the single-sex facilities of their gender identity under the [Equality] Act or under the Workplace Regulations.”

Elizabeth McGlone, managing partner of Didlaw and LS’s solicitor, said the law firm was delighted. “We hope this case goes a significant way to supporting the Supreme Court judgment in For Women Scotland and applies further pressure on the government to publish the EHRC guidance (which has been inexplicably and unjustifiably delayed) and to force all employers to comply with the law on biological sex and the provision of facilities and services.

“We also wish to thank the claimant for her strength, courage and fortitude in bringing this case, challenging her public sector employer (while remaining employed) and achieving this outcome of both her behalf and that of all biological women.”

The updated EHRC code of practice for services, public functions and associations, in light of last year’s landmark ruling in For Women Scotland v Scottish Ministers, is expected to be laid before Parliament this month. A code for employers will follow in due course.

 

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