Transwoman wins employment discrimination case against NHS for being treated differently from women in changing room

[Clymene]

I thought there was a thread on this but I can't find it. Maybe it was deleted? I shall choose my words very carefully.

The court found that the unnamed employee had been discriminated against because they were asked questions that a woman would not have been about whether they had been undressed in the communal women's changing area.

Judge Davies said: 'A concern about the woman's state of undress in the changing rooms was likely to be connected with the fact that she is a transgender woman.
'This was a communal changing room with a shower cubicle. It did not seem to the Tribunal likely that there would have been a concern about a cisgender woman in a state of undress while changing in such a changing room.
'The Tribunal therefore concluded that [the manager] asked the questions because of a concern that the woman as a transgender woman might be in a state of undress in the female changing room.
There were also several serious allegations against several female co-workers but while the Trust accepts these incidents happened, no perpetrators were ever identified.

There were a number of other complaints but they were dismissed by the Court.

https://www.dailymail.co.uk/news/article-11027471/Trans-NHS-worker-wins-discrimination-case-confronted-underwear.html

I am sure I'm not alone in finding this story very disturbing.

Very worrying that it was deleted.

I've seen loads of threads like that. Examples of sexism, misogyny and predation.

I can't imagine what rules would've been broken.

It's the Family Guy "Do whatever you want' clip in real life.

Well female spaces have existed well before the SSEs existed in the EA. So they are not a manifestation of the SSEs. I would say they are a social convention and this has worked historically because males accepted that they were not permitted to enter and would be challenged if they did enter. That has now changed with a subset of males saying that they are women (and some of them actually being legally women) claiming to also have entitlement to use these spaces in line with social convention. As far as I know there was never anything in law that says it is illegal for males to enter those spaces. The SSE are just a recent legal exception to give service providers "permission" to exclude males (who are transgender) in law. So to actually apply the single sex exception it might be that this has to be carried out in a more formal way so that service provider can show that they have considered whether it is a proportionate means to achieve a legitimate aim. I am not a lawyer so I might be wrong and like I said there is not much in the way of case law but I suspect that this person could have been lawfully excluded if the hospital had taken women's concerns seriously and found a separate place for the TW to change.

I see what you're saying Signalbox but isn't it the case that without the SSEs such spaces would now be illegal sex discrimination?

I don't see how it can be legal to (i) designate single sex spaces and (ii) allow some males in (making them no longer single sex and (iii) not allow other males in.

One poster on the thread was attacking all the other women who were talking about their experiences of abuse. Said poster said they had never experienced assault/abuse/rape and nobody they knew had ever experienced assaault/rape/abuse, so women were wrong to say that it was a common or frequent experience. They insulted and sneered at all the women discussing their abuse and posted over and over again. Instead of dealing with this one poster, MN deleted the thread.

I have not recently seen this particular poster so not sure if they are still on the site.

This is my argument against letting TW in female spaces. At what point does a male ‘become a woman’? Surely letting some males in a space and others not would be gender discrimination? How do we decide who gets to use female spaces if there is no definition of what woman and trans are?

That's my understanding of it too.

The mere existence of a single sex space is not an SSE. The SSEs were included in the equality act to exclude transwomen where they might want to enter into a female space. They're supposed to be treated 'as women', and the SSEs were designed to limit that under certain circumstances.

Sport and rape refugees are explicitly mentioned as examples of those circumstances.

As are places where more than one women might gather, and where the presence of the opposite sex might reasonably be considered inappropriate.

Certainly, a place where you are undressing could easily be considered an Exception. It would be a no brainer. Especially if the male in question has been offered an alternative to change that wasn't the male changing room.

That's my understanding of what an SSE is, but I wouldn't be at all surprised if it was something else entirely, that had just been recently interpreted in the way I understand it in this particular context.

Since trying to get my head round all the various, interacting legislation, my admiration for people who actually understand the law has skyrocketed.

Have we as yet seen any instance of a space being declared single sex and that being upheld, in the court?

I'm starting to think we don't actually have any workable protection or right to single sex spaces at all. TRAs often claim this. That 'single sex spaces' are a myth.

If they are correct, then I'm starting to think we need to go further than bolstering the EA and demand a very clear law that enshrines women's rights to have certain spaces free of males.

Surely letting some males in a space and others not would be gender discrimination?

"Gender discrimination" isn't illegal though. So I suppose the employer could argue they aren't using the SSEs but are providing facilities separated by "gender".

Just as they could theoretically separate by anything that isn't a protected characteristic - I don't know, star sign or height or favourite crisp flavour - if they wanted to?

The mere existence of a single sex space is not an SSE. The SSEs were included in the equality act to exclude transwomen where they might want to enter into a female space.

Were they though?

Isn't it just that the EA disallows discrimination by any of the PCs, except that there are some special exceptions for sex?

I note that none of our usual anti-women posters have turned up to tell us how wrong and fascist we are on this

They were all over the beginning of this thread! Once it became clear what sort of person this TW was (from people reading and quoting the judgment) they gradually backed off and vanished. It’s so predictable.

Thanks very much for that summary @Misstache
I haven't had time to read the full judgement and you've saved me the trouble. I also commend your memory to be able to give such a detailed account of events.

It's truly shocking, literally no one else would receive that level of accommodation.

I am also concerned about the frequent mentions of diarrhoea. This person "worked" in the hospital kitchens?
Were they ever referred to occupational health/required to send a sample/required to take time off sick for this?

From the POV of management of the kitchens that's a bit concerning!

They have.
There is a thread on AIBU about this very thing, still there as of 2 minutes ago and with one of the usual suspects berating the women.
Apparently, being "naked from the waist down" does NOT mean that and penis was on display. Work that one out if you can!

And convoluted mental gymnastics to say this person was a poor put-upon TW badly discriminated against by bigoted transphobes etc.

All the usual bullshit.

It’s so crap. All these women trying so hard to appease this one individual whose total contribution was to make everybody else’s life harder from the sound of it.

How do we get to women like this and tell them they DON’T always have to “be kind”, at their own expense? Imagine if there were feminists going into these workplaces and doing consciousness raising for women instead of Stonewall etc type “diversity” training. Imagine that.

What a fab idea @RoaringtoLangClegintheDark

*any penis

Yeah. The mental gymnastics that are being displayed to excuse deliberate exposure.

I'm guessing the frequent mention of diarrhoea was a deliberate ploy to claw even more time off work. Working in catering they would know only too well that it would likely lead to them being sent home. One thing that is clear about this person, irrespective of their gender identity, is that they are very work shy.

It is extremely worrying that the judge does not know how to apply the law as written in the equalities act 2010.

I've never been in a male changing room.
But do men regularly remove all their clothing and strut around naked in them?
I'm not talking about saunas and swimming pools etc just every day work changing rooms where people shed their everyday clothes and put in uniform/scrubs etc?

I feel like the men I work with would find this behaviour odd at the very least. I shall have to ask...

I’ve asked ‘my’ men. Apparently not… unless you go to a certain sauna.

I've read the judgement, admittedly I skimmed the bits about sick leave, but the only mention I could see of the 'naked below the waist' thing was at the end. Did miss something earlier on?

Anyway, I get the impression from the entire judgement that the tribunal assumed/knew that C had had genital surgery (statistically unlikely as we know). That is the only possible reason for thinking it was OK for C to be naked from the waist down in a female changing room. I used to think similarly btw until I was educated about this but now I see no difference between 'pre-op' tw and post op.

It's all appalling. The NHS really needs to sort itself out.

I think I can see what pp was saying, though.

If a transwoman is protected from discrimination under the EA and the comparator is females or 'other women', then it doesn't really matter what they were doing or wearing, whether their penis is visible, erect or waving about.

Whatever the transwoman is saying doesn't affect their gender, even if it upsets or intimidates or causes anxiety in women in the space.

According to this judgement the law should support a transwoman accessing a female space no matter the genital arrangement, state of undress, clothing choices, amount of facial hair, history, etc.

These things are all irrelevant, because the only relevant criteria on whether or not the person should be allowed to access the female only space is the feeling of the (trans) person.

If a male feels like female and wishes to access a woman's only space, then the law protects and supports that.

Have I got that correct, Hearach? Feel free to correct any mistakes I've made reflecting on your position.

I can’t help wondering how much NHS money was wasted as a result of the decision to hire this person.

The red flags were visible at interview stage. I’m guessing the desire to be kind and inclusive overrode the red flags, the same way that happens for so many women in their personal life.

This person hasn’t done other trans people any favours at all

why would you hire a sacred caste member who can behave dreadfully and then take you to court and win when you try to sort it out?