The NHS could be inundated with thousands of discrimination claims from female employees following a tribunal ruling that its policy allowing transgender women to use single-sex facilities was unlawful. An NHS worker in Leeds successfully sued health bosses this week, arguing that she faced discrimination and harassment because transgender colleagues were permitted to use women-only toilets and showers.
Background of the case
The case centred on policies adopted by NHS England in 2017, which stated that transgender staff could use facilities matching their gender identity. Although the claimant never encountered transgender women in the facilities she used, the Leeds Employment Tribunal upheld her complaint that the policy itself created a hostile environment, amounting to harassment based on her biological sex.
Current NHS guidance
NHS England has yet to update its guidance following a landmark Supreme Court ruling last year that clarified the definition of 'woman' in the Equality Act refers to biological sex. Many trusts say they are waiting for revised guidance before making changes. Critics point out that while some trusts have withdrawn their policies, they have not been replaced, leaving the practice of self-identification effectively unchanged.
This means thousands of female NHS workers may still be facing discrimination. The NHS has previously been accused of prioritising Pride and transgender rights over women's concerns. Women and Equalities Minister Bridget Phillipson has been holding onto guidance from the Equality and Human Rights Commission (EHRC) on how to enforce the Supreme Court ruling for months.
Extent of outdated policies
Last month, a Daily Mail audit revealed that 97 per cent of 190 NHS trusts in England with inpatient facilities still have outdated policies allowing trans-identifying biological males to use women-only spaces, including wards, changing rooms, and toilets. This persists despite the Supreme Court ruling. Many public bodies claim they are in limbo due to the delay in publishing EHRC guidance.
Potential for mass claims
Elizabeth McGlone, managing partner of Didlaw, the law firm representing the Leeds employee, said the ruling could lead to massive group claims. She stated: 'You could now have massive group claims. On the premise of the facts of this case, that gives women who are in this position in local authority or public body employers the grounds to bring a claim. We're talking about every council in the country that flies its Progress flag, its trans-inclusion flag and then actually has facilities that don't protect biological women in a safe space.'
She criticised the failure to publish EHRC guidance, saying: 'Everybody is excusing themselves on the basis that we're just waiting on the EHRC guidance. Well that's nonsense, because again, the Supreme Court ruling is entirely clear. The guidance is no more important. It's less important than a Supreme Court judgment that came out over a year ago. It's just fear. And it is just procrastination to the highest level.'
Reactions from campaigners
Maya Forstater, CEO of sex-based rights charity Sex Matters, called the judgment highly significant. She said: 'This is a highly significant judgment which shows that the NHS could face successful claims from any female employee who takes issue with NHS England's policy of allowing trans-identifying male staff to access women's toilets and changing rooms. NHS England and trusts across the UK have been warned repeatedly over several years to bring their policies in line with the law, and this verdict makes any further delays untenable. It's shameful that it has taken the bravery of individual women such as the claimant in this case to pressure the NHS to take women's right to privacy, dignity and safety seriously.'
Details of the claimant
The NHS employee, a Muslim woman who cannot be named due to reporting restrictions, received an email about a colleague's transition and was asked to attend a 'trans awareness session', prompting her complaint. She argued the policy indirectly discriminated against women generally, Muslim women specifically, and women with PTSD caused by male sexual violence. The tribunal ruled NHS England failed to show its policy was a proportionate means of achieving a legitimate aim.
The woman could receive up to £25,000 in compensation, and NHS trusts could face legal bills of hundreds of thousands of pounds if more claims are launched. Ministers have pledged to publish EHRC guidance this month. An NHS England spokesman said: 'While we cannot comment on individual employment matters, we recognise the need for revised guidance on same sex spaces, and we will consider today's findings as we develop a new policy.'
