Recent case law has clarified how the Equality Act 2010 (EA 2010) applies to sex and gender reassignment in the workplace.
Following the Supreme Court decision in For Women Scotland, the legal definition of “sex” under the EA 2010 is biological sex. This means that, for EA 2010 purposes, a trans woman is legally male, and a trans man is legally female, even if they hold a Gender Recognition Certificate saying otherwise. Workplace protections relating to sex therefore apply on the basis of biological sex.
Ms B Hutchinson and others v County Durham and Darlington NHS Foundation Trust
This issue was considered by an employment tribunal in Hutchinson and others v County Durham and Darlington NHS Foundation Trust. The Trust had a policy allowing employees to use single-sex changing rooms based on their self-declared gender identity. A trans woman employee used the female changing rooms, and – when several female colleagues raised concerns — the Trust refused to change its policy.
Trust found liable for harassment
The tribunal found that the requirement for female employees to share changing facilities with a biological male, and the Trust’s failure to respond to their objections, amounted to harassment related to sex and gender reassignment.
Importantly, employees do not need to share the protected characteristic themselves to bring a harassment claim – it’s enough that the conduct relates to that characteristic. So, for example, you can be harassed on grounds of gender reassignment even if you personally have not undergone gender reassignment.
Trust found liable for indirect sex discrimination
The Trust’s policy of allowing access to single-sex spaces based on gender identity – and prioritising those rights over the rights of women to single-sex facilities – placed women at a disadvantage because they were considered more likely to experience distress, fear or humiliation when required to share communal changing facilities with a member of the opposite biological sex.
The Trust could not justify the approach, and the discrimination claim succeeded.
Key takeaway for HR
Policies on single-sex spaces must be handled carefully. Allowing access based solely on gender identity, without balancing the rights of others, or considering alternative arrangements, can expose employers to significant legal risk.
Further reading
- For Women Scotland
- Employer liability for harassment – Hunter Law
- It’s time to learn the legal definition of harassment – Hunter Law
- Discrimination – Your rights – Gov.uk
- Your rights under the Equality Act 2010 – EHRC
- The Equality Act 2010 – Gov.uk
- Constructive criticism is not harrassment – Hunter Law
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