Recent updates on sex discrimination

Recent updates on sex discrimination and harassment case law

In the last couple of years, there have been several Tribunal cases surrounding sex, gender reassignment, and access to single-sex facilities in the workplace.

Many of these cases refer back to the case of For Women Scotland Ltd v The Scottish Ministers, in which the Supreme Court determined that the term “sex” within the Equality Act 2010 referred to biological sex, and that references to “men” and “women” must be interpreted based on biological sex.

Hutchinson and others v County Durham and Darlington NHS Foundation Trust
In the case of Hutchinson and others v County Durham and Darlington NHS Foundation Trust, female employees brought claims of discrimination after the Trust failed to address their concerns around a policy which permitted transitioning employees to use changing rooms in line with their self-declared gender identity.

Based on the For Women Scotland case, the Tribunal determined that requiring female employees to share a changing room with a biological male trans woman, and failing to address the women’s concerns, amounted to harassment relating to sex and gender reassignment.

Their claims of indirect sex discrimination were also successful.

By allowing access to single-sex changing rooms based on self-declared gender identity, and by prioritising the perceived rights of transgender employees over the rights of other employees, it was found that this put female employees at a particular disadvantage.

Kelly v Leonardo UK Ltd
Kelly, a female engineer with Leonardo UK Ltd, raised a grievance about the Company policy, which allowed trans staff to use the toilet facilities of their asserted gender identity.

Kelly argued that the views of those who believe in gender identity theory were placed above those with gender-critical views, and that this disadvantaged women.

However, Kelly’s grievance and appeal were not upheld, and she then raised a Tribunal claim for harassment related to sex, direct and indirect sex discrimination, and a breach of rights under Article 8 of the European Convention of Human Rights.

Kelly’s claims were unsuccessful.

The Tribunal acknowledged that the employer had met the 1992 Regulations by providing sufficient female-only and unisex single-occupancy facilities.

The Tribunal therefore disagreed that the policy placed women at a particular disadvantage, and made note that Kelly continued to use the female toilets without issue.

Peggie v Fife Health Board
Peggie was a staff nurse at the Kirkcaldy Hospital A & E department who raised a complaint to the Hospital when a trans woman Doctor used the female changing room.

The Hospital argued that the Doctor was entitled to do so.

However, following an argument in the female changing room, the Doctor raised a complaint of harassment against Peggie.

Peggie was suspended, but the evidence in the subsequent disciplinary hearing was inconclusive, and Peggie then raised a Tribunal claim for harassment relating to sex and religion or belief, as well as direct and indirect sex discrimination, and victimisation.

The Tribunal denied most of the claims around discrimination and victimisation; they agreed that it was lawful for the Doctor to use the women’s changing room.

However, the claim of harassment related to sex was successful, due to the failure of the Hospital to work out a temporary solution while dealing with Peggie’s complaint, and in how some parts of the disciplinary process against Peggie were managed.

These cases all highlight the importance of how employers balance gender reassignment rights, sex-based privacy and dignity rights, and health and safety obligations.

They also show the importance of context, such as whether there are communal or single-occupancy facilities, whether complaints were handled appropriately, and whether reasonable interim steps were taken.

If you would like to review how your business manages workplace facilities, complaints, and harassment risks, contact us for support with policy reviews, manager guidance, and practical steps to reduce legal exposure.