A group of nurses who complained about a trans colleague using single-sex changing rooms at work suffered harassment, an employment tribunal judge has ruled.
The judge found the nurses’ dignity was violated and they encountered “a hostile, intimidating, humiliating and degrading environment” at work.
The seven female nurses, who work at Darlington Memorial hospital, brought a claim against their employer, County Durham and Darlington NHS foundation trust. It stemmed from their objection to another nurse, Rose Henderson, a trans woman, being allowed to use the women’s changing facilities.
In a judgment handed down to the parties on Friday, Judge Sweeney said: “The trust subjected the claimants to harassment related to sex and gender reassignment by permitting the claimants’ biological male, trans woman colleague to use the female changing room and requiring the claimants to share that changing room without providing suitable alternative facilities.”
The ruling said the trust also subjected the nurses to harassment by not taking their concerns seriously. “This included referring to the need for the claimants to be educated on trans rights and to broaden their mindsets, the later provision of inadequate and unsuitable changing facilities for those who objected to sharing the female changing room with that colleague.”
Sweeney said: “The above conduct had the effect of violating the dignity of the claimants and creating a hostile, intimidating, humiliating and degrading environment for them.”
The nurses claimed during the tribunal hearing in Newcastle that Henderson stared at them, and one of the nurses alleged that Henderson asked her three times if she was going to get changed.
The tribunal dismissed as “not well-founded” complaints about Henderson’s conduct, saying she “did not behave improperly whilst using the changing room”.
But it said that “in no way diminishes these very real and genuine perceptions of the claimants, all of whom were fearful of the risks at the very least, to their dignity, bodily integrity and privacy”.
Henderson, an operating theatre practitioner, in her evidence described how “upsetting” it had been to see “hordes of people” posting insults online after the case came to public attention.
After the judgment, Bethany Hutchison, the nurse who led the claim, which was backed by the Christian Legal Centre, said it was a “victory for common sense”. She said: “Today the tribunal has confirmed what we have said from the beginning, that requiring women to undress in front of men is not equality, it is a violation of our dignity.
“This judgment recognised the intolerable and degrading situations women have been placed in.”
She added: “Today is a turning point, but it is not the end. All NHS trusts across the country must urgently review their policies and ensure they are lawful and protective of women.”
At a press conference in Newcastle, the women said they had compassion for Henderson. Lisa Lockey, one of the claimants, said: “We never wanted to hurt Rose,” and blamed the NHS trust for Henderson being put in that situation.
Lockey said women needed to be listened to. “We’ve experienced such a silencing, that we weren’t allowed to complain and we were gaslighted by our trust,” she said. “I felt like I was such a terrible person for having the audacity to complain about this. Women shouldn’t be made to feel like that. It’s wrong.”
Ministers have said they will not be rushed into giving guidance on same-sex spaces but Hutchison said they needed to speed things up. She said: “They’re clearly dragging their feet and they need to pick up the pace. This is not a difficult thing to work out. It’s pretty simple and I think this ruling has shown that.”
Lockey said: “We hope that the rest of the NHS follows suit with dealing with the situation, with making safe spaces for women. Obviously we are aware that it’s happening elsewhere.”
Andrea Williams, chief executive of the Christian Legal Centre, said there should be no further need for legal cases on the subject: “It’s clear here – biological men are men, women are women, and that should be clearly recognised by the NHS policy.”
The 134-page ruling said Henderson was the only trans woman at the hospital to use the women’s changing rooms. It said no one in management or human resources “had any discussion with Rose about the appropriateness of using the female changing facilities, either during Rose’s time as a student or at any time after Rose became an employee of the trust”.
The ruling said: “From the outset and throughout, it was simply accepted by management that Rose would use the changing room of Rose’s choice as Rose was transgender.”
The tribunal also upheld the nurses’ complaint of indirect sex discrimination in that women were more likely than men to experience fear, distress or humiliation if they were required to change in front of a member of the opposite sex.
The panel ruled that the trust had breached health and safety regulations and “had infringed the claimants’ right to respect for private life under article 8 of the European convention on human rights”.
A spokesperson for NION (Not in Our Name) Women, a collective of women in support of the trans community, said 77,000 women had signed a supportive letter.
“A key message being put out in relation to the outcome of this case is that it should be a lesson to organisations to ‘listen to women’. However, it is crucial to note that not all women feel trans people should be excluded from gendered spaces.
“The 77,000 signatories to our letter know that you can support women’s rights and be inclusive of trans people – the ideas are not contradictory.”
The trust said: “We are taking time to review the judgment carefully and will comment further once we have had the opportunity to consider it in full.”
