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.

Well, at least one poster says 'If anyone has seen the video footage of the Wii Spa incident in USA, the women were all walking about modestly covered in robes and towels. THAT is how normal women behave. Biological women have never felt the need to parade about with their genitals on display'
and is clearly talking about a spa ie a place where women can reasonably be expected to be naked.

There is no reason whatsoever why the person in the case being discussed should have been naked in front of the other women. Were any of them naked in front of him? I very much doubt it.

sex-matters.org/posts/the-workplace/if-you-cant-say-sex-how-can-you-say-sexual-harassment/

In the videos of the Wii Spa incident, the women were wearing robes because they were in Reception, a public area of the spa. Where women and men congregate together, nudity is rarely considered appropriate. Where the sexes are separate, nudity may be acceptable, depending on the situation. That was the problem in the Spa: a male was invading a females-only space and exposing (pronoun)s male genitals. Same problem in this NHS women's changing room.

Totally agree; single-sex nudity is acceptable (and sensible) in some contexts, and is not 'parading about'.

Thanks for the link, PearlClutch. I'm so glad SexMatters have picked this up.

That piece really makes clear how pronouns are Rohypnol. Nowhere in the judgment is the claimant referred to as male. As soon as you substitute male for female, he for she etc it becomes very clear what the issue is.

SexMatters say it should be appealed.

This judgment should be appealed.

The tribunal got it legally wrong by using a female comparator for a male in a case of gender-reassignment discrimination. The correct comparator is another man (See Green v Secretary of State for Justice 2013).

Although it is only a first-instance judgment and not precedent-setting, it is likely to be used as an example to persuade employers and service providers that they must tell staff that they cannot challenge any man in women’s spaces, even a half-naked man in a communal changing-room, for fear of discriminating.

If the Hospital Trust won’t appeal it, one or more of the women who were included in the claim could. We know there would be support. The Equality and Human Rights Commission could back them or could take over the case to demonstrate to employers the important point about comparators, and to defend the right of women to object to exposure and voyeurism, and to be protected from sexual harassment.

I would be very happy to do some digging for this one.

You're missing my point.
(I was the poster quoted above)

My point is that WOMEN do not feel the need to parade about. I never said they did.
The point is that some MEN do.
It is the actual point, that others SEE their genitals, it's part of the thrill.
Women can be disrobed with their genitals visible if you care to look, sure, but they don't INTENTIONALLY want other people to look and notice their genitals - they just happen to be naked.

I did not imply that women naked in each others company "parade" about.
I'm talking about men intentionally wanting to be seen.

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

So would I. I really want it nailed home that the comparator for a man, however he identifies, is another man.

It's pivotal. And it really needs highlighting.

The Equality and Human Rights Commission could back them or could take over the case to demonstrate to employers the important point about comparators,

Couldn’t the EHRC issue new guidance to clarify this? Preferably statutory guidance.

I don’t know how any of it works but a court case seems very risky compared to other actions the EHRC could take.

Something else that might be relevant.
From the conversation the claimant is said to have overhead, which, whether the conversation ever actually happened or not, the details are likely true.

The claimant was said to be a man, with a penis and facial hair who does not dress like a 'girl'

So, on what basis was the claimant ever treated as a trans women

Did the NHS ask for any evidence of the claimants status as a gender transitioner during the interview and hiring process, or did they simply accept self I'd? Which as far as I know isn't actually legal yet in England.

Shouldn't there be some evidence that the claimant is undergoing gender reassignment other than just their say so in order for it to be a protected characteristic?

It is just their say so. There is no gate keeping, it is self ID by the back door. The hospital could have used SSEs, but they chose not to apply them properly.

The trouble is I just can’t see the hospital trust appealing. They’ve already spent loads, reputation trashed either way & I imagine NHS england will be leaning very heavily on them not to do anything that might upset stonewall further

Did the employer accept that the alleged over heard conversation and the notes happened because otherwise they may have been asked questions about this?

From the Green case detailed on the Sex Matters website:

“He is in a male prison and until there is a Gender Recognition Certificate, he remains male. A woman prisoner cannot conceivably be the comparator as the woman prisoner has (either by birth or election) achieved what the claimant wishes. Male to female transsexuals are not automatically entitled to the same treatment as women – until they become women.” HHJ Richardson

“Thus, if a trans woman brought a discrimination claim on the basis of exclusion from a women-only bathroom or domestic violence refuge, her experience would be compared to that of a non-trans man. Obviously, and even applying the ‘proportionality’ test, a non-trans man would have been excluded. The conclusion that must follow is that there has been no discrimination.” Alex Sharpe

My concern with the comparator argument in this case is that the claimant had already been granted access to the female changing room by the Trust and should therefore not have been treated differently to the women using the same changing room. I think they made a grave error in granting that access but I wonder how the trust could possibly argue that the claimant was treated as "female" for the purposes of access but male for the purposes of determining appropriate behaviour.

Both of the statements I have quoted are examples of males who had not already been given any concessions for their gender identity and were denied (either in reality or hypothetically) accomodations on the basis of their sex.

There was no mention of a GRC in the tribunal report and AFAIK the Trust could not have asked for one anyway so whether the claimant had one or not seems irrelevant.

I do not think the Trust is in the position to appeal, it was their own decision which resulted in the need for questions to be raised about the claimants lack of underwear in a female space. I wonder if Suella Braverman has been appraised of the situation? If the women employed by the Trust do not bring a case then I think the EHRC is probably best places to follow this up.

As unpleasant as it has been for the women involved to be named it does at least make it easier for a keen and enterprising legal team to reach out to them and offer their services.

If I missed the point and that is indeed your point, it's because it's not put clearly at all. Your post says the women [in Wi Spa] were all walking about modestly covered in robes and towels. Biological women have never felt the need to parade about with their genitals on display
ie you draw a distinction between women being 'modest' in towels and women naked and 'parading'.

Did the NHS ask for any evidence of the claimants status as a gender transitioner during the interview and hiring process, or did they simply accept self I'd? Which as far as I know isn't actually legal yet in England.

There was no mention of a GRC in the tribunal report and AFAIK the Trust could not have asked for one anyway so whether the claimant had one or not seems irrelevant.

Technically, self-id doesn’t mean anyone can just decide on the spot that they are the other sex. Self-id legally mean absolutely anyone can change their their legal sex by paying a fiver and ticking some boxes. They would then get a GRC and could change their birth certificate to say they were borne the other sex.

But because of the privacy clause, nobody is allowed to ask whether someone has a GRC, let alone ask to see it. So we do, in practice, have a make-your-sex-up-on-the-spot situation.

This also makes SSE irrelevant. If those men who have a GRC are allowed in, all men are allowed in.

It is also a mystery how you would make the legal right to exclude men with GRCs work in practice. If a man shows up, swears blind he is a woman, how is anyone going to prove otherwise? You might, at a push, be allowed to ask for a birth certificate, but if the bloke has changed his to say he was borne female, we could have the preposterous situation of a 6ft hulk of a man walking around with his dick out, flashing everyone from the lowliest receptionist over everyone in HR to top of management, and nobody can prove he is male.

I don’t think the majority of the mp’s who voted for the GRA back in 2003 understood this was where creating two parallel realities, the real one and the legal one, would lead. I dare say some advocates of the GRA knew exactly where it was heading, but for many/most politicians involved at the time this is an unholy mess of their creation that needs to be rolled back.

We need the GRA to go, as there is no way of allowing some men to be women, but also sometimes be men, while no-one is allowed to know which men are women, and which are just pretending to be women, and also maintain rights for women.

First of all, we need the ‘privacy clause” that makes a mockery of everyone to go, and the GRA was brought in in the first place on the argument that some men passed so well no one would ever know they weren’t women and it would therefore be an invasion of their privacy to have to admit they were men.

This argument should never have been made to allow any and all men to flash their dicks at will.

I read this story in the Times yesterday.
In The Times the opening paragraph said it was a women’s changing room. The judge refers to a ‘communal one’. So I wonder which it was?

The fact that the judge used the term ‘cis gender’ implies to me that the judge believes in gender identities and may subscribe to Stonewall ideology in general.

The judge seems to assume that gender reassignment means the trans women could not have been excluded from the women’s changing room. I thought new guidance about the equalities act said they could. I hope someone with legal knowledge can comment.

Or does it all hinge on the idea that the.trans woman’s gender reassignment meant that their actual maleness had to be ignored should they choose to remove their underpants- as women would not be asked whether or not they were removing their pants, neither should the trans woman be asked?

On the one hand I feel sorry for the trans woman who overheard the derogatory remarks, but on the other I understand why the women were angry.

If the trans woman felt picked on by the manager asking them the question about their pants, I wonder why the trans woman had thought it fair for women to have to experience the trans woman’s semi-nakedness and self - evidently male presence in their changing room? No wonder the management thought it wise to check the trans woman was not removing under pants.

Of course the manager would not have asked the women the same thing.

The trans woman should have had a separate changing space provided.

""ie you draw a distinction between women being 'modest' Hmm in towels and women naked and 'parading'.""

Nope.
Never said that.
No comparison was made between women and other women.

In fact I said women DON'T do it.

Not sure why you don't get that.

Motorina · 19/07/2022 17:33
I’ve read it.

it’s clear that the TW in question was extremely difficult to manage. A large number of allegations were brought, all but one was dismissed.

The plan was that the TW would change in a seperate cubicle within the women’s changing room. I have Views on that, but the rights and wrongs of that decision were not part of what the tribunal was to decide, so they did not consider it. I would welcome a case by one of the impacted women looking at that issue, but that will only happen if someone brings it.

When there was the allegation that the TW was naked from the waist down in the communal area, part of the management response was to ask the TW if the TW wore underwear all the time at work. The tribunal said (and I agree) that that questioning was wrong. I think they should have focused on the allegation itself.

The bullying, as described, was abhorrent. The trust accepted it happened so the tribunal took that as agreed.

Thank you, Motorina, that makes the case easier to understand.

Just want to point out too that if a female colleague took me off to a private room and then proceeded to inform me that she'd taken off her knickers because she was 'hot'. And this same woman was repeatedly trying to invite herself around to my house in the evenings and at weekends, then yes. I would be uncomfortable. I might even feel sexually harassed.
Especially if I lived alone or with small children.
I don't see why it would be discriminatry to say so whether it was a man, a woman or a trans woman who behaved like this.

It was the fact that they were male. Any other male would have been asked the same questions ergo no discrimination based on gender identity can have occured.

Agreed. The Tribunal used the wrong comparator

LovinglifeAF · Today 15:49

“MrGHardy · Today 15:45
It was the fact that they were male. Any other male would have been asked the same questions ergo no discrimination based on gender identity can have occured.”

^Agreed. The Tribunal used the wrong comparator*

Are you sure? I mean are you sure that the law wouldn’t say TWAW (because of ‘gender reassignment’) therefore the comparator was other women?

If you are right, how could the judge get it so wrong, given this would seem to be a basic premise that ought to be understood by the law?

It was the fact that they were male. Any other male would have been asked the same questions ergo no discrimination based on gender identity can have occured.

It's a side point to the one you're making, but I don't think any other male would have been asked those questions! I think a male without a gender identity would have had disciplinary proceedings brought a LONG time before that incident happened and the "wringing gesture" incident would have got him fired outright. Ditto for a female without a gender identity - fired way before it ever got to that point.

Even if not fired, I don't think a non gender haver would have been asked these very delicate "what's with all the underwear talk, do you perchance have health related issues about underwear" questions that allowed enough ambiguity for a biased Tribunal to interpret it as intrusive and embarrassing for the harasser. They'd have been told it was inappropriate in so many words, and written up.