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.

Unfortunately, I think the chances of the nhs appealing it are next to zero, so will have to wait until this happens in a more private business setting before precedent can be changed (not sure on my law terminology).

I took some time to look through the judgement posted by a PP upthread. At no time did the complainant jingle their bits in front of women in the changing rooms which were cubicles AFAIK.

The person was clearly hugely fragile when applying for the job. It seems s/he was just transitioning and requested no mention of it, and also wanted a highly graduated approach to a full time job in the catering section of the hospital complex. HR briefed all the staff involved.

The judgement against the hospital trust is based on the fact (1) the complainant found a transphobic note in her locker which she destroyed and didn't report at the time. (2) she overheard people in the changing cubicles discussing forcing her out because of her male physique - she never saw them but the HR lady realized she was in the changing cubicles and tried to help her identify the voices - a right hash since one of the people identified as a posh voice had a foreign accent and less than fluent English and while the HR woman was in there she doesn't seem to have heard the discussion (3) the complainant received another note in her locker and reported both that and the earlier note but took umbrage at being asked to provide a handwriting sample for elimination purposes (4) she apparently mentioned to a member of staff that she was so hot her knickers were wet/she was going to soak them (not clear) and mimed wringing them out - which was then picked up by management but she denied the conversation. Whichever, it was decided she should not have been asked about her underwear habits because a cis-woman wouldn't have been.

IANAL and you can make up your mind from reading the court summary posted by the PP above.

What I took from it was that the transwoman was hugely sensitive and possibly not without reason since she talked of arson on her car and vandalism. Having got the job she was afraid of losing it but her experiences and fragility meant she did take a good deal of time off. A number of people did support her but she was also suspicious of them. A very hard task for the management - but I was surprised by the lack of evidence in court but I guess a lot of employment cases rely on reported claims v contemporaneous notes etc.

This bit from the determination says it all really. The CPU were given EDI training when they knew they were going to be having a TW in the team. Some women raised concerns about sharing changing rooms with a TW and rather than take the concerns on seriously and devise a way that the TW could be given somewhere to change that would have maintained the women's privacy they told the women that their concerns were not valid and that a balance of rights meant the TW would be sharing their space.

Mrs W discussed with Mr A, HR Business Partner, what other steps might be taken to ensure that the Claimant had a positive and supportive return to the workplace. She did not think that the CPU had previously welcomed a transgender member of staff. They agreed that Mrs E, the Trust’s Head of EDI, should be asked to deliver some bespoke training to CPU staff. Mrs E devised and delivered bespoke training to every member of staff in the CPU. There were a number of sessions (to ensure distancing because of the pandemic.) The staff were in the training room and Mrs E delivered the training by Microsoft Teams. The Tribunal saw a copy of the slides and Mrs E gave evidence about the training. It covered trans and gender diverse identities’ what these terms mean; and explanation of transitioning; an explanation of gender dysphoria; the legal framework in the EA; and examples of trans discrimination, harassment and victimisation. Mrs E ensured that there was plenty of opportunity for discussion and questions. No question was off limits. She said that it was clear that there were different views and levels of knowledge among staff. Some expressed concerns, mainly female members of staff worried about sharing the ladies changing room with a transgender woman. Mrs E tried to address those concerns by explaining that there was no evidence of trans women being a threat or causing any issues in the workplace, and that there needed to be a balance of rights and respect for someone who wanted to live her life completely as a woman. The Tribunal had no doubt that the training was well devised and well delivered. Mrs E clearly has empathy, experience and expertise and that was undoubtedly reflected in the quality of the training she delivered.

Trans woman have actually being using women's changing rooms for decades, you just didn't notice.

(It's part of how you get a GRC - you have to live as a woman - and that's something that was introduced in 2004. Again, you just didn't notice them).

Can the women who were flashed at have a separate tribunal for their distress?

It's a changing room. You can't be indecently exposed in a place which is specifically built for you to get changed in.

Well yes a male flashing his penis in a female changing room, that should be classed as indecent exposure as he shouldn't be in there. There's male changing rooms he could use.

They were in a changing room. It's pretty self explanatory why that they were in there to change their clothes.

Trans woman have actually being using women's changing rooms for decades, you just didn't notice

yes we did….

It's worth reading the findings if you have the time.

I think some posters who have not may be confusing different issues here.

What struck me was how much time and effort was put into supporting this employee, especially around their working hours (having accepted a FT position).

It was definitely a carefully handled HR issue in the main - at least from the claimants side (less so I'd argue for the women being asked to share their single sex space).

I'm skeptical a woman with childcare issues for example would have received such consideration, but that is my opinion only.

As Motorina says the tribunal only responds to the allegations raised and imho it's quite an interesting case in terms of what it doesn't address.

I'd like this thread to stay so it's worth posting carefully I feel.

One takeaway is that I think findings such as these are damaging to the trans community. Reading the full text it's a Pyrrhic victory imho.

It's part of how you get a GRC - you have to live as a woman

What does “living as a woman” entail?

This whole case could have been avoided if the NHS Trust had fair and equal policies in place i.e. single sex changing rooms for women and men and a third option for people transitioning. This is no doubt a Stonewall trained Trust that did a cut and paste job on their transitioning a work policy and this is the inevitable fall out.

They were in a changing room. It's pretty self explanatory why that they were in there to change their clothes

it was the lack of knickers that seems to be the issue …not changing clothes

obviously no one should be sujected to abuse

I am reading the findings now.

As far as I can tell the HR handling of the issues (up to page 35 so I'm not yet finished) was good.

And yes, I very much recommend reading the findings as they explain the context much better.

Well quite. A penis is a bit of a giveaway.

If the alleged victim had done nothing wrong, I would say that the note she received and the conversation they overheard were completely uncalled for and unacceptable. But if the women were provoked by her forcing them to see her naked male body and by making “jokes” about not wearing underwear in an intimate setting where they are already vulnerable… Well, I would probably have said get the fuck out too.

If you are a transwoman who just wants to live your life and fit in with other women, why the fuck would you be walking around half-naked or talking about not wearing underwear in women’s changing rooms? Just go in, get changed and leave, like everyone else! It’s almost like she was deliberately trying to make the other women uncomfortable.

The judgement against the hospital trust is based on the fact (1) the complainant found a transphobic note in her locker which she destroyed and didn't report at the time. (2) she overheard people in the changing cubicles discussing forcing her out because of her male physique - she never saw them but the HR lady realized she was in the changing cubicles and tried to help her identify the voices - a right hash since one of the people identified as a posh voice had a foreign accent and less than fluent English and while the HR woman was in there she doesn't seem to have heard the discussion (3) the complainant received another note in her locker and reported both that and the earlier note but took umbrage at being asked to provide a handwriting sample for elimination purposes (4) she apparently mentioned to a member of staff that she was so hot her knickers were wet/she was going to soak them (not clear) and mimed wringing them out - which was then picked up by management but she denied the conversation. Whichever, it was decided she should not have been asked about her underwear habits because a cis-woman wouldn't have been.

not quite right. There were no findings against the hospital based on 1-3. They may or may not have been privately sceptical of the claims (reading the judgement, it’s difficult not to be) but they investigated them properly.

The one finding against them is related to point 4. Personally I’d say that if the claimant didn’t want their underwear mentioned at work rhey shouldn’t have spoken to female colleagues about their underwear complete with hand gestures, but the judge disagreed.

Dear god. So a (biologically) male person got to commit exhibitionism, and got to play the victim for being challenged on it.

The tribunal should have been about the breach of the women’s human rights in having to share facilities where they were undressing with a male person. In any just world, anyway.

I see the women as the victims here, even the ones who left the note/had those conversations. They were trying to fight back against the abuse being perpetrated by this male person and the NHS trust that allowed the male person into the women’s changing/shower area.

Obviously the comments were insulting and offensive, and none of it was language I myself would use, but do women really have any obligation to be respectful and courteous toward a male person who is abusing them? This is heading back to the notion that a female victim of rape should be obliged to refer to her rapist as “she” if the rapist identifies as a woman.

This is one reason why women find it so hard to say no. We are punished and penalised when we do. We are made out to be the wrongdoers.

Is it not normal for women to use extremely insulting language about men who have hurt or abused them in some way? Women routinely call men knobheads, pricks, dicks, wankers, wankstains, arsewipes and much more here on this very site.

This male person made a choice to violate the women’s boundaries. Any non-trans male person who made a choice to violate women’s boundaries would be fair game for any amount of abusive epithets. And no one (but MRAs) would really have a problem with it.

The ET judge used the wrong comparator, as many have already said, and should have measured the response against the response any other male person would have faced in that situation. What she did is very, very worrying, and smacks of the same old regulatory capture we’ve seen so much of.

Deeply disturbing that this will very probably have given the green light to I don’t know how many other male people who want free access to women only spaces, and who could want that access for all sorts of reasons, not just if they identify as trans.

Whether this person was intending to cause distress with this exhibitionism or was just seeking the validation of being in with the women, the impact on the women is the same: this is abusive behaviour - the women here were the victims of a sex offence - and we really, really need to start naming it as such.

I hope this gets overruled on appeal. Otherwise we may as well legalise indecent exposure and flashing. The perpetrators will simply have to claim to be transgender to get away with it - in any women’s changing room or toilet.

This.

I don't think decision like this that overrule women's rights to privacy and dignity will do anything for trans rights in the long term. It makes it appear that their motivations are to remove SSE.

FFS

Trans woman have actually being using women's changing rooms for decades, you just didn't notice.

And women are suddenly noticing now because?
This case wouldn't have ended up in a court if women hadn't noticed would it?

Reading the findings has this part which may be relevant in understanding the context of the case:

The Tribunal noted that the OH report was provided on 9 November 2020. Dr Giri referred to the Claimant having a significant emotional health problem and unstable personality attributable to recurrent traumatic incidents and unpleasant
gender related comments. Two arson attacks and one episode of car vandalism had hampered her recent fragile recovery. Re-joining full-time employment after being out of work for 10 years in an emotionally fragile condition was far from ideal.

I agree they highlight the unfair demands of activists, and that will impact on any male who has gender dysphoria.

I still don't understand why the comparator was a woman, though.

The protected characteristic mentioned is gender reassignment. If you are excluded on that basis, it's discriminatory. It can't be discriminatory if you're excluded on the basis of being male. As long as you exclude all other males.

I'm pretty certain there has been case law on this issue already. And it is Stonewall training which tries to get round it.

I don't think the NHS will be appealing any time soon. But would the women concerned have a case? They are being treated differently to men, on the basis of their sex. They are having to put up with feelings of discomfort and fear, purely because they are women.

The person in question has inadvertently confirmed it through the notes and conversation (whether one thinks it's made up, or genuine and/or unfair). They have shown that the women felt worried, concerned for their safety, uncomfortable and upset.

But it's ultimately the responsibility of the trust's HR and legal departments to know the law and ensure that staff are safe.

Exactly, it's a ridiculous system. Far better to do away with it in it's current format and move to simple self ID like Ireland has had for seven years and which Scotland is now legislating for 😀