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The contentious issue of women-only single spaces continues to see a lot of litigation.
The latest decision is the high-profile case of Ms B Hutchison & Ors v County Durham and Darlington NHS Foundation Trust (the Darlington nurses), which has been widely reported across the media. The case concerns women's toilets and safe access and usage by women. The nurses won their case.
In holding in favour of the group of nurses, the Employment Tribunals found that the policy of County Durham & Darlington NHS Foundation Trust of allowing trans women into female changing rooms amounted to unlawful harassment and indirect discrimination.
This is a welcome outcome following the controversial decision in the poorly decided Sandie Peggie v Fife Health Board case.
The County Durham & Darlington NHS Foundation Trust had operated a Transition in the Workplace Policy which allowed men who identify as women to use the women's toilets and changing rooms. The group of female nurses raised concerns with respect to both privacy and dignity at having to share their changing rooms with trans women, i.e. biological men.
The Tribunal held that the Trust did not take the women's concerns seriously and failed to adequately or sufficiently address them. The women had been told that if they were worried about getting changed in front of a man who identifies as a woman, they should find alternative facilities.
The Trust tried to argue that the Policy was lawful despite the Supreme Court judgment in For Women Scotland. The tribunal judgment in the Darlington nurses case went on to say that the Policy was, in fact, not lawful and that a policy permitting biological males who identify as women to use a female changing room was not lawful. This decision is in line with the decision of the Supreme Court, which pro-trans lobbyists continue to argue whether itself is itself unlawful.
The Tribunals' judgment also highlighted that the Workplace (Health, Safety & Welfare) Regulations 1992 require an employer to provide facilities which include 'separate facilities for, or separate use of facilities by men and women where necessary, for reasons of propriety.' In addition to breaches of the Equality Act 2010 (on the grounds of sex and religion), the Tribunal concluded that the Trust had infringed the women's Article 8 ECHR right to respect for private life.
The president of the Darlington Nurses Union, Bethany Hutchison and one of the nurses who brought the case stated:
'This is a victory for common sense and for every woman who simply wants to feel safe at work. Women deserve access to single-sex spaces without fear or intimidation.'
I wholly support this sentiment, and I know this reflects the view of those women I have supported to protect their right to safe, single-sex spaces, or who have had their protected philosophical views (gender critical beliefs) vilified and disregarded by their employer. I salute the bravery and tenacity of the Darlington Nurses, and I am delighted to see this outcome in their favour.
There are many more toilet cases on the horizon, and I trust that other Employment Tribunals will come to the same, sensible and reasoned conclusion.
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