ET Ruling on Changing Room Access, Sex, and Gender Reassignment
ET finds indirect sex discrimination where trans woman used female changing rooms, highlighting employer obligations and staff rights.
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Case Study
This case has attracted intense media and wider interest. The hearing was held in February and July 2025, with judgment being issued in December. The decision was over 300 pages long and the following is a brief summary only.
Nurse Peggie (“the Claimant”) works in the A & E department of Victoria Hospital, run by Fife Health Board (“the Respondent”). She holds gender critical beliefs (essentially that sex is immutable and someone cannot change gender through reassignment).
Dr Upton was born male and transitioned to female in 2022. Upon doing so she had asked her employer which changing facilities she should use and was told that their policy supported her use of the female facilities. She had been using these for some time when, at the end of December 2023, she was confronted by Nurse Peggie who expressed her objection in person. She is alleged to have compared Dr Upton to a sex offender who had been housed in a female prison. Dr Upton raised a grievance about this incident and the Claimant was suspended whilst an investigation was held. No disciplinary action was ultimately taken, and instead the Trust aimed for a what it called a “restorative approach”.
Nurse Peggie then brought multiple claims in the Employment Tribunal alleging she was discriminated against on the grounds of her sex and gender critical beliefs, harassed because of her sex and gender critical beliefs, sexually harassed by Dr Upton, and victimised for raising concerns. She is also understood to be taking legal action against her Union. Only a number of these claims before the Employment Tribunal succeeded, but the case made findings regarding access to single sex spaces which are very much worthy of examination.
Case Study
First, the ET found that no claims could be successful against Dr Upton individually, as she had been following her employer’s instruction to use the facilities.
Importantly, the ET found that simply being in the space was not a form of harassment. The ET also found that whilst Nurse Peggie’s gender critical views were protected as a belief under the Equality Act her manifesting those beliefs by comparing Dr Upton to a rapist was “impermissible” and that she herself was guilty of harassment.
The parts of the claim that succeeded were about Nurse Peggie’s suspension and the Trust’s failure to find a way to work around the issues (i.e. to allocate different shifts or find a temporary changing room solution). The ET seemed to find that once a solution had been found, Dr Upton could continue to use the facilities- thus suggesting that it can be acceptable for employers to provide non-single sex spaces (by allowing trans people to access facilities assigned for their identified gender) unless / until an issue arises.
The ET ruled that it was reasonable for the Trust to initially grant permission for Dr Upton to use the women’s changing room and it was not inherently unlawful for them to permit a trans woman to use a female workplace changing room (but such permission is not automatically lawful and must be justified on the facts).
The ET had more concern over what happened when the issue was raised- i.e. how they responded to Nurse Peggie’s concerns. Here, they found that other measures, such as the adjustment to shifts that were later implemented, would have better balanced the effect on Nurse Peggie with Dr Upton’s rights. In other words, this was a fairer way of dealing with it, rather than suspension. On this basis, the ET found that the failure to revoke Dr Upton’s permission to use the facilities at this point (and instead suspending Nurse Peggie) did have the effect of violating Ms Peggie’s dignity -which amounted to harassment.
The ET also identified procedural errors in the process and although it found that Nurse Peggie’s expression of her beliefs was properly considered impermissible, the unreasonable delay in conducting the investigation had the effect of creating a hostile environment for her. In short, it went on too long and amounted to a further act of harassment.
All parties are understood to be planning to appeal this judgment.
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