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.

As a line manager, this sort of shit, aggravation and bad feeling among employees is the last thing you want

for this particular situation there is a very easy way to avoid it. I am not saying it’s the right way mind you

I think the opposite - they’ve won the tribunal which means employers are now off the hook to provide any safeguarding or separate facilities for dignity and privacy of women.

No, this employer would have been fine if they’d provided a separate space for the TW. Well, not fine, they took on a nightmare employee. But the count they lost on was partly due to women expressing concerns about h— behaviour in the women’s changing rooms.

So if you take on a TW employee, you either give them a separate space or you diligently prevent all your female employees from ever complaining about h— behaviour in the women’s space. And if you do the latter you’re potentially enabling sexual harassment and opening yourself up to a lawsuit from your female employees.

I think one of the lessons any sensible employer would take from this case is to give TW a third space.

Yes but only if there is a proportionate means to achieve a legitimate aim. If you are relying on it for legal purposes this would require an assessment and a policy that people can follow. Everyone needs to know where they stand.

I don't think the tribunal even considered whether or not it would have been open to the hospital to have excluded this TW from the changing room because that is not what this case was about. This NHS trust knew that a transgender person was about to join the team. They had training where women raised concerns about sharing with a TW. At that point they could have listened to the women and decided that a legitimate aim would be to provide single-sex facilities to their female staff. A proportionate way of achieving this might have been to offer separate facilities for the TW. This would have been clear and lawful. But they didn't do this.

Instead they appear to have decided that women's privacy was not a legitimate aim (or possibly they didn't give the EA and the exceptions any thought at all).

As far as I know there is no obligation for them to use the exceptions. There is no case law on this yet. This is perhaps the next sort of case that needs to be brought. The prisons case tried to make the case that the government were obliged to provide single sex provision and it failed.

Yes but only if there is a proportionate means to achieve a legitimate aim. If you are relying on it for legal purposes this would require an assessment and a policy that people can follow. Everyone needs to know where they stand.

I think you are right that many organisations are simply continuing with convention and haven't decided explicitly "our 'ladies' is for females only as allowed by the ES SSEs".

But I would have thought they would be able to make a good case for that being a "legitimate aim", even, if challenged, retrospectively.

I don't know where they would stand if they have made it clear that the 'ladies' is in fact mixed-sex. What's the point? Why can't other men go in?

For example, if one of my male (not trans) colleagues complained that he was being discriminated against because he wasn't allowed in the ladies', I don't think he'd have a leg to stand on.

I'd like to think my employer could use the SSE to defend having single-sex loos, even though they haven't carried out a formal assessment process and don't have a policy on it.

Yes, that's the right way to put it.

And the exceptions have become more important, because so many men are identifying as women.

And it interacts with the gender recognition act, as far as I know, on the basis that you can be a legal woman and therefore from a legal point of view you're not being discriminated as a man, but as someone with the protected characteristic of gender reassignment.

I think that's right.

Without a GRC you get excluded on the basis of sex, with a GRC, you can be excluded on the basis of gender reassignment. Both of which are entirely legal, as they are exceptions to the rule.

I don't think any point, a man without a GRC can be compared to a woman, though.

it is a ridiculous minefield, which because it's not unequivocal, gets interpreted differently, depending on whose interests are being represented.

I agree that a small skin of the meaning of a proportionate means to a legitimate aim, could provide an easy justification.

But, a lot of these places have been trained by Stonewall. They will look up their manual, and see that they must treat these males as women under all circumstances otherwise they are liable to be sued.

^skim

Without a GRC you get excluded on the basis of sex, with a GRC, you can be excluded on the basis of gender reassignment. Both of which are entirely legal, as they are exceptions to the rule.

I don't think this is quite right - I don't think exclusion on the basis of gender reassignment would be legal.

I think it would still be legal exclusion on the basis of sex, and that the EA is spelling out that gender reassignment (even with a GRC) doesn't change your sex for this purpose.

But, a lot of these places have been trained by Stonewall. They will look up their manual, and see that they must treat these males as women under all circumstances otherwise they are liable to be sued.

Agreed. I would like to see this properly tested in law.

Instead they appear to have decided that women's privacy was not a legitimate aim

We have been told many times that women asking for privacy, dignity is 'bigotry' and raising the issue of women's fear of attack from males is 'weaponising our trauma'.

Transwomen's fear of attack from males is never questioned.

Women's fear of attack from males is labelled 'bigotry'.

It seems to me that this is all far too complicated and fuzzy.

If judges can get muddled, if the law is not clear, then how on earth are your average managers, staff, people-on-the-street supposed to make sense of it all?

We need the EHRC to urgently clarify, I think. I mean properly in writing. So there is no ambiguity and no confusion and no question about the words/terms/laws/rules/regulations.

I think the main issue here was an employee who was taking the Mickey. They seemed to have ‘issues’ which made them a difficult person to manage, plus a sense of entitlement and ‘nerve’ - and a reluctance (scared more likely) by management and HR to take the matter in hand.

The whole ‘pussy footing’ around was for one reason only. I have managed (thankfully very few) people who have turned out to be nightmares - making wild demands, bullying coworkers to accommodate whims and fancies, being confrontational and difficult to manage.

all staff must be treated the same. A woman with a catalogue of ‘issues’ like this would have been stopped long ago (sounds like it started even before they took up the job - so bells must’ve been clanging then).

Yes, again, I think you're right. Although I have heard it phrased differently.

"Service providers must meet a number of conditions to lawfully establish a separate or single-sex service. These conditions are set out under exceptions relating to sex in the Act."

So that's about what is sex you are.

"There are circumstances where a lawfully-established separate or single-sex service provider can exclude, modify or limit access to their service for trans people. This is allowed under provisions relating to gender reassignment in the Act."

"If you have met the conditions set out above and have established a separate or single-sex service, you should consider your approach to trans people’s use of the service. In considering your approach and when taking decisions you must meet the conditions set out under the gender reassignment provisions.
Under these provisions, your approach must be a proportionate means of achieving a legitimate aim. This will depend upon the nature of the service and may link to the reason the separate or single-sex service is needed. For example, a legitimate aim could be the privacy and dignity of others. You must then show that your action is a proportionate way to achieve that aim. This requires that you balance the impact upon all service users.
Example: A group counselling session is provided for female victims of sexual assault. The organisers do not allow trans women to attend as they judge that the clients who attend the group session are likely to be traumatised by the presence of a person who is biologically male.
Example: A domestic abuse refuge offers emergency accommodation to female survivors. Feedback from survivors indicates that they would feel uncomfortable sharing accommodation with trans women for reasons of trauma and safety. The provider decides to exclude trans women from the refuge. It compiles a list of alternative sources of support in the local area which can be provided to trans women who approach the centre for help.
Example: A leisure centre introduces some female only fitness classes. It decides to exclude trans women because of the degree of physical contact involved in such classes.
Example: A gym has separate-sex communal changing rooms. There is concern about the safety and dignity of trans men changing in an open plan environment. The gym therefore decides to introduce an additional gender-neutral changing room with self-contained units."

So, although I'm assuming it's still on the basis of sex, they are specific about entry being sought on the basis of gender reassignment.

What do you think HipTightOnions?

I wouldn’t be surprised if the person in question only got the job because of their trans status. The Trust probably thought they were doing some positive discrimination - bet they regret it now.

That makes sense Datun, thank you.

So it seems there is no need for an assessment before providing single sex facilities, but there is a need to consider legitimate need in determining how trans people are to be accommodated.

I have been trying to persuade my employer to consider policy now. It would much easier to discuss the issues before they relate to a particular individual. In the absence of any policy, it's too easy to default to telling the women they must put up with it, and rely on them being too intimidated to complain.

I think in the case discussed in this thread, I found the initial "training" the most chilling.

Yes, the ideological training is indeed at the root of this.

I don't think there is any doubt that a service provider can have single sex spaces in the way that most people would understand them. Changing rooms, toilets, etc.

And, of course, you're quite right that making provision before it's needed is a much more secure way of going about it.

So single sex provision for men and women and a third space provided for those who are uncomfortable using the single sex provision.

There aren't many times that women want female only spaces. And, from what I can see, all of them are easily justifiable in terms of the equality act.

The pushback is why service providers don't do it. But they can. Legally.

The equality act is all about balancing the rights of those with different protected characteristics.

A male getting naked in a female changing room and making the women feel uncomfortable is not 'balancing' in anyone's book.

The trusted created this problem itself, didn't it? If it hadn't allowed the employee to use the female changing rooms, then there wouldn't have been other staff getting upset about the nudity.

I'm surprised that the trust didn't settle before it went to tribunal, especially as they didn't challenge the claims about the overheard conversation - for which there was no evidence at all other than the say-so of the employee.

Only on page 1 so I expect this is already up, but here's the judgement...

assets.publishing.service.gov.uk/media/62cff0578fa8f50bfafb091d/V_v_Sheffield_Teaching_Hospitals_NHS_Foundation_Trust_1806836-2020___Others.pdf

I feel so sorry for the female employees here; doing a hot, boring low-paid job (socially vital but under-appreciated) and having to see how a colleague who displayed zero empathy towards them got such special treatment.

Can you imagine such support being given to female employees who were single mums or carers?

I read it last night, & was gobsmacked at how much trouble numerous staff got in return for simply employing one person in hospital catering. If the transgender issues were removed from the account, what's left is still mind-blowing. And then the tribunal mentions what hadn't occurred to me: that all this was happening while Covid was rife & hospitals were under enormous pressure. I feel so sorry for the staff involved, who seem to have tried so hard to help the Claimant.

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 doubt C had had it, but the Tribunal having assumed this without any other evidence is quite plausible I think. Depending on what exactly was said in the hearing and how explicitly it was discussed. Good point.

The trusted created this problem itself, didn't it? If it hadn't allowed the employee to use the female changing rooms, then there wouldn't have been other staff getting upset about the nudity.

I think if they had used the EA single sex exemptions to maintain the female single sex space that female colleagues allegedly obviously wanted, there would have been less of a case for "harassment" by treating the male person they had themselves allowed to use it differently to female people.

Also an AIBU thread on this, in case the link hasn't been posted http://www.mumsnet.com/Talk/amiibeingunreasonable/4593426-that-this-transgender-person