Recent Tribunal decisions on single sex spaces

The April 2025 decision in For Women Scotland, which ruled that “sex” in the Equality Act refers to biological sex, has prompted extensive discussion about the legal and practical implications, including whether transgender employees should be able to use the toilet and changing room facilities aligned with their gender identity.

Over recent months there have been a series of Employment Tribunal decisions concerning disputes arising out of transgender women’s use of female toilets and changing facilities. While these first instance decisions have generated significant media attention, the outcomes have been inconsistent and offer limited practical guidance for employers facing similar challenges.   An appeal court decision will ultimately be needed to provide clarity. In the meantime, however, these cases do offer some insight on managing competing rights in the workplace.

The Employment Tribunal decisions

Peggie v Fife Health Board: Ms Peggie, a nurse with gender critical beliefs, objected to a transgender doctor using the female changing room. She had an exchange with the doctor and reported her concerns to the hospital, which maintained that the doctor was entitled to use the facility and suggested Ms Peggie use an alternative space. Following a confrontation, the doctor complained of bullying and harassment and Ms Peggie was placed on special leave.  

She brought claims including sexual harassment and indirect discrimination. A Tribunal partially upheld Ms Peggie’s harassment claim whilst rejecting her indirect discrimination claim. It found that the employer had created a hostile environment, simply by failing to suspend the doctor’s access to the female changing room while the issue was being resolved, and at least until new rotas could separate the two individuals. Three further harassment allegations relating to the investigation process were also upheld.

However, in an important legal finding, the Tribunal decided that the For Women Scotland case does not make it inherently unlawful for a trans woman to use female workplace facilities. Gender reassignment protection does not, however, guarantee access in all circumstances. Employers must apply a proportionality assessment when determining access to single sex spaces. While initial permission for the doctor to use the room was lawful, the Tribunal found that when Ms Peggie raised objections, the employer should have revoked that permission on an interim basis.  

In Hutchinson & Others v County Durham & Darlington NHS Foundation Trust, which also arose out of a trans woman’s access to female changing facilities, the Tribunal took a different position. 

Eight female employees brought indirect sex discrimination and sexual harassment claims after the Trust allowed a trans woman to use the female changing rooms in accordance with its policy which permitted transgender staff to use changing rooms aligned with their gender identity. In this case, staff had to use the Trust’s changing facilities at the start and end of each shift because they were prohibited from travelling to work in their hospital uniforms. In this instance, rather than seeking an interim solution, the Trust’s response was essentially to tell the employees that they should be more open-minded.

The claimants’ expert witness on gender and justice gave evidence that: 

• Women are generally more sensitive than men to changing in a communal changing room in front of someone of the opposite sex
• Women are more likely to experience fear, distress or humiliation in such circumstances.

The Tribunal found that requiring the claimants to share female changing facilities with a trans woman and failing to act on their objections created a humiliating and degrading environment. This amounted to harassment related to sex and gender reassignment.

Indirect discrimination is when a working practice, policy or rule (referred to as a PCP) is the same for everyone but has a worse effect on someone because of a 'protected characteristic'. The Tribunal identified two PCPs:

• Allowing access to single sex spaces based on self declared gender identity
• Prioritising the perceived rights of transgender employees to use facilities based on their self-declared gender identity over the rights of other staff to use single sex facilities.

Although these PCPs applied to all staff, they placed women at a particular disadvantage as they were more likely to experience fear or distress when required to change in front of someone of the opposite biological sex. The Tribunal found that the Trust had failed to justify these PCPs and the indirect discrimination claim succeeded.

The case of Kelly v Leonardo UK Ltd concerned an employee’s objection to trans women using female toilets.

Ms Kelly, an engineer, challenged her employer’s toilet access policy, which permitted trans staff to use facilities aligned with their gender identity. She argued that this policy disadvantaged women and created safety issues even though single occupancy toilets were also available to employees. Her grievance and appeal were rejected.

The Tribunal accepted that the policy amounted to unwanted conduct related to sex but found that it did not violate her dignity or create a hostile environment – Ms Kelly had continued to use the female toilets without issue, despite the availability of alternative single occupancy toilets. Her direct discrimination claim failed because men and women were treated equally. 

The Tribunal also dismissed her indirect discrimination claim because the policy did not put women at a particular disadvantage in terms of privacy, safety or increased risk - and even if a disadvantage existed, it would be minor and objectively justified by the employer’s aims of lawful treatment of trans employees and fostering an inclusive workplace. 

However, the tribunal commented, given the employer’s considerable size and resources, that it was ‘both surprising and disappointing’ that the employer failed to consult or warn staff about the new toilet access policy and to carry out an equality impact assessment of the policy on all protected groups.

What these decisions mean for employers

These cases are not binding on future cases, and we will have to wait for more senior courts to decide on the issues to draw definitive lessons, particularly given that the approach taken by the Tribunals has not been consistent. The Peggie and Kelly cases indicate that allowing a trans woman to use female facilities is not automatically discriminatory, however Hutchinson suggests that this may in some circumstances indirectly discriminate against women.

The claimants in Peggie and Kelly have confirmed they are appealing the decisions.

In the interim, employers should take a cautious approach. If an employee raises concerns about sharing female toilets and changing facilities, employers should: 

• Respond empathetically - in the Hutchinson case, the Trust’s suggestion that the employees needed to be ‘educated’ on trans rights and ‘broaden their mindset’ was poorly received
• Handle grievances promptly and sensitively - delays in Peggie contributed to the sexual harassment findings, with the Tribunal noting that a reasonable period of time to investigate the doctor’s allegations against Peggie would be no more than six months
• Offer access to appropriate alternative facilities where possible, on a temporary or permanent basis - in Peggie, the hospital also changed the rotas so that Ms Peggie and the doctor worked different shifts.

In addition, where employers are considering making changes to their policy on staff use of toilet and/ or changing facilities, they should consult staff and carry out an equality impact assessment of the policy on all protected groups.

The Government is currently considering the EHRC’s updated guidance on the implications of For Women Scotland, including how publicly accessible single-sex spaces should operate. While this may provide some clarity, the EHRC’s guidance will not directly apply to private employers and the single-sex spaces that they provide to their own employees.