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.

Precisely. Great summary btw.

I wonder why the judge made that assumption? One of the comments that C claims to have overheard was:

"I am sick to death of this bloke with a dick pretending to be a
woman, who doesn’t even dress like a girl and has facial hair, that thing may
rape me and we can drive it out of the department and maybe find a suitable
leper colony for it."

That very much suggests that C hadn't had surgery.

I wonder why the judge made that assumption? One of the comments that C claims to have overheard was:

Given that they have no idea who made the comment if anyone actually did, they have no idea how accurate it was, I guess. How would a colleague know unless the nakedness was already happening, which isn't alleged until much later?

I forgot to add the POLICE were also calling the hospital about the TW, which is one other reason why they were concerned.

For those who haven’t read the judgement, it’s important to point out the underwear convo happens at a totally different hospital than the alleged “bullying.” At the moment the TW was told their pay would be cut after two months off for notes and convo nobody in room at time saw anything about, they magically became fit to work and transferred to a new site where they were appeased by being given a service woman to ask about makeup, invite self over to house late at night and talk about wet underwear with.

Someone on another site pointed out underwear convo was obviously woman (the exclamation mark writer) trying to delicately say “please stop sexually harassing staff” but did it clumsily which opened door for TW to claim discrimination. She’s basically like “hmmmm, but..don’t you normally wear underwear?” Obviously these are women encountering AGP behaviour for the first time, their instincts telling them something is wrong and uncomfortable, but that is clashing with their “TW are oppressed victims and you must never question them” training. So they’re legitimately uncomfortable and also confused, and try to deal with it by trying to say “but why would you take your underwear off at work? Who does that?” to figure out what they are dealing with. In other words, women got sexually harassed, felt something was wrong, couldn’t name it, harasser got victory in hearing over them.

Interestingly, even though the women at this point were clearly uncomfortable (I genuinely love exclamation mark writer, I’m not in the UK and it seems so perfectly English to me; poor thing, the only avenue to express herself was some pointed punctuation), they still can’t bring themselves to admit in the hearing that it was nasty. They actually end up doing themselves in a bit by saying nothing was wrong about telling woman I’m not wearing underwear right now because they’ve been rendered unable to say “I felt weird when underwear came up, we were alone in a locked room. This person told me they felt sick and I took her aside privately and then all of a sudden they said it was soooo hot their underwear was wet and they took it off, and I knew something was off about that.” But of course, that would mean admitting that she felt scared trapped in a room while being told “I’m naked under here” which would mean admitting her instincts knew this wasn’t a woman…I feel so bad for these poor women being gaslit.

This is the service woman “work buddy” who has advised TW about makeup, talked to TW outside of work, counselled about mental health problems…at one point she shows message of TW inviting self over to house and she’s like “oh dear, I’m in bed.” Many women said Tw would invite self over on weekends and evenings. They’re obviously deeply uncomfortable, trying to appease and refuse politely…it’s really quite awful. TW is obviously trying a come on, and woman judge seems to almost see it but then doesn’t.

somebody also pointed out the TW was probably forced to apply for a job by job Center, wasn’t expecting to get it but pandemic and enthusiasm for diversity hiring did them in and they were forced to accept the job or get kicked off unemployment. So began immediately trying to sabotage and get a settlement.

TW actually has legal degree. So used power and privilege over immigrant and working class women, bullying them to get money.

somebody also pointed out the TW was probably forced to apply for a job by job Center, wasn’t expecting to get it but pandemic and enthusiasm for diversity hiring did them in and they were forced to accept the job or get kicked off unemployment. So began immediately trying to sabotage and get a settlement.

Yes I think it's very plausible that they were obliged to apply for work by DWP, they specifically wanted 16 hours which was denied because the job was full time. 16 hours work or less is the threshold for a number of benefits.

I think they were giving benefit of the doubt to an angelic degree: exclamation mark woman said she genuinely wondered if there was a health issue. They’re basically asking if there’s any logical reason underwear might be taken off (probably wondering if maybe something about transitioning makes you hot and sweaty or painful “down there”) in order to NOT admit it’s sexual harassment. And for that kindness they got a judgment against them. I hope they didn’t get fired.

They actually end up doing themselves in a bit by saying nothing was wrong about telling woman I’m not wearing underwear right now because they’ve been rendered unable to say “I felt weird when underwear came up, we were alone in a locked room. This person told me they felt sick and I took her aside privately and then all of a sudden they said it was soooo hot their underwear was wet and they took it off, and I knew something was off about that.”

This part bothers me more the more I think about it. Especially since the judge uses the exclamation mark as part of the evidence that upheld that one claim.

Is the judge's position something along the lines of "you claim you didn't think this was sexual harassment, but the exclamation mark proves that you DID think it was sexual harassment, and that's discrimination on the basis of gender identity." Because that is how I'm reading it, but I do hope I'm wrong.

Would it actually have gone worse for them if they'd named it as the sexual harassment that it clearly was?

Yeah, the judge basically says “you claim you were only innocently concerned about health, but you put exclamation marks when you wrote underwear and the wringing out gesture so I’ve caught you out there and clearly you were singling out the underwear and discriminating.” The judge seems to interpret this as “you wouldn’t make a big deal about a cis woman’s underwear,” totally missing that the marks are actually signifying disturbed horror at harassment. And judge acknowledges TW lies multiple times, first denying convo even happened but is proven by notes kept right away - so the woman IMMEDIATELY not only told her supervisor but also made her own notes (obv deeply disturbed) - and then lies again about the questions asked in meeting and STILL rules for TW.

the judge is a woman and should KNOW regular women don’t sidle up to other women innocently in a closed private room and talk about porno-based scenarios after already violating their boundaries multiple times with escalating behaviours. This is classic minimizing behaviours that women use after assaults/harassment/abuse - excusing the behaviour, minimizing it, questioning selves and perceptions. This judge does not understand consent and I hope she doesn’t do assault cases.

I’m sure these poor women had been fed a whole song and dance about how badly this woman was bullied at the last hospital and no woman wants to be an awful transphobic hate criming terf so they were unable to name what was happening. The more I think about it the angrier I get, and the sadder for these poor victimized women.

But of course nobody would be allowed to ask about genital surgery so the assumption may well have been that C had had it, as I said up thread, because that's what most people do actually think. And I agree the 'overheard comments' indicate this was an intact male body but the judge didn't make that connection.

So they've got us over a barrel. Accept them as women like us, whatever is in their underpants, but we must not try to find out what that is and if we 'accidentally' see something not female .... well, just shut up about it.

@Ereshkigalangcleg my thoughts too. Why would someone with a law degree want a minimum wage job as a catering assistant? Nightmare for the management and other staff.

That's a good question. But perhaps there was a reason they couldn't get a job as a lawyer.

Note that the claimant isn't named in the report for legal reasons. That is very unusual in a tribunal. Normally the reason for not naming someone is that they're underage (clearly not the case here) or that they're involved in some highly secretive government work, or that they're being blackmailed/in witness protection (in other words, at risk of harm in some way) or, finally, that they are awaiting trial for a criminal offence.

I'm sure Mumsnet wouldn't like us speculating. But we can, I hope, speculate inside our heads.

I know judge Davies. She’s been completely Stonewalled.
No doubt she thinks of herself as well trained and empathetic, but in reality she’s completely biased and unable to deliver justice without fear or favour.
It’s particularly interesting as she’s very clever and capable on other issues.

it’s a shame the trust won’t appeal as I think the decision is legally flawed,

They really ought to not allow stonewalled judges to sit on such cases. The person in question could have cartwheeled through the canteen naked, singing ‘I’m a little teapot’ and get compensation because no one cheered and gave them a promotion.

I havent read the full thread, who is Judge Davis?

@KittenKong the thing is they’ve all had the same training, some have just absorbed it more than others. The Equal Treatment Bench Book chapter looks like it’s written by stonewall

@bellac11 she was the employment judge on the case

Gawd help us then. Quis custodiet ipsos custodes, eh?

Quis custodiet? Stonewall, of course.

I understand that if you do not know enough about something you ask an expert to teach you. But how can any intelligent person just spend their critical faculties and accept what the expert states without question? How can a judge not see the conflict of needs and rights?

davidrobson.me/the-intelligence-trap/

'We assume that smarter people are less prone to error. But greater education and expertise can often amplify our mistakes while rendering us blind to our biases. This is the ‘intelligence trap’.'

Unbelievable that this claimant got an anonymity order whilst the individual Respondents dragged into it were all named.

appalling

I thought this inclusion in the legal principles section was interesting.

10. Under s 109 Equality Act 2010, anything done by a person in the course of their employment must be treated as also done by their employer. However, under s 109(4), in proceedings against the employer in respect of such a thing, it is a defence for the employer to show that it took all reasonable steps to prevent the person from doing that thing or anything of that description.

Would this mean that if an employer failed to maintain single sex provision of staff toilets and changing facilities that they could be liable if a woman was assaulted by a male who had been given permission to use female facilities?

In this case the Trust was protected by the extraordinary efforts they had made to ensure that the employee was welcomed and supported and had done everything in their power to ensure the new employees colleagues were also prepared.

However the trust did nothing to protect female staff and actually dismissed their concerns when they were raised at the pre TW employment training. Had this individuals behaviour escalated I don't think the Trust would have had a leg to stand on.

'Peter Daly (employment and discrimination solicitor who was involved in Maya's case) tweeted after being asked:
Yes, I would say so. The comparator needs all of the characteristics of the claimant except for the protected characteristic. Claimant and comparator need to be of same sex (biological, per ss.11/212).I
That seems completely clear to me. The judgment was technically flawed. I'd also like to see the evidence for the comments made; if they are true, they are offensive and unacceptable, but like a pp, I don't find that they ring true.

To another point: many posters on here are saying it's not usual for women to go naked in women's changing rooms and communal showers. That's untrue for me personally, and IME a fair number of other women also go naked in these places. It's not the case that I or they 'parade about with [their] genitals on display . Why on earth should it not be OK for women to be unclothed in a women's changing room? I gave up doing a Houdini-style change under a towel once I'd got through my awkward adolescence. I don't appreciate women with no clothes on, in contexts where it's perfectly logical to have no clothes on, being accused of 'parading'.

This person got management to email everyone before they started to ask that no one ever mention their fragile transgender status, yet spent their entire employment drawing attention to it?

I absolutely feel for those individuals who've had their names dragged through the mud.

Maybe it is the context dame.

Maybe not in NHS changing rooms for catering staff. Whereas for a gym or pool communal changing room it is different.

To another point: many posters on here are saying it's not usual for women to go naked in women's changing rooms and communal showers. That's untrue for me personally, and IME a fair number of other women also go naked in these places. It's not the case that I or they 'parade about with [their] genitals on display . Why on earth should it not be OK for women to be unclothed in a women's changing room? I gave up doing a Houdini-style change under a towel once I'd got through my awkward adolescence. I don't appreciate women with no clothes on, in contexts where it's perfectly logical to have no clothes on, being accused of 'parading'.

Changing rooms st gyms and swim pools are quite different and yes, include communal showers in some places though some swimming pools have enclosed shower cubicles albeit in a communal area. I would say some expect people to keep their swim kit on and have a quick rinse of the swim water and others understand people want a proper lathered up shower and hair wash. I have never seen anyone naked in a swim pool shower as people either make use of privacy if it is offered or shower with their swim kit on. Obviously when getting dressed after swimming there will be a brief period of nakedness and in an single sex area I would be happy to dress in the main area but in the communal facilities that many pools have nowadays then I would use a cubicle, so no public nakedness.

As regards NHS changing rooms they are generally poorly equipped (broken lockers etc) and just for hanging up your coat and changing in and out of uniform.
Where showers are provided people might want to use them for a variety of reasons - cycling to work and sweaty, patient vomited all over you, wanting to go home clean, but these showers imo are private cubicles and people shower and dress in that private cubicle.

I have NEVER seen a naked body in an NHS changing room.