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.

Again, on the information given in the judgment, at no point was this TW wandering around naked in female spaces

Naked, no. Naked from the waist down (which, after all, includes the important bits), yes. See paragraph 150.2.

@lookleft - the complainant made 61 complaints, of which two were upheld.

Ms Hulbert recalled that Mrs Hawkshaw had mentioned Mrs Townsend’s account and then asked the Claimant, was she inappropriately dressed in the changing room and seen by a member of staff, did she tell a member of staff about taking her underwear off, maybe she asked if she had felt unwell. She might have asked her if she wore underwear at work, or if she wore it in general, because if she had been seen without any on in the changing rooms then she probably asked her if she did wear it at work. She did not recall Mrs Hawkshaw asking the Claimant if she changed her underwear at work. She did ask her if she had changed her underwear if it was hot and sweaty and had she done it before.

There were not five or side reasons the judge found for the claimant - I've copied them in an earlier post. She simply judged that she thought a woman wouldn't have been asked a similar question. However, as cleverer people than me have suggested, discrimination when it comes to gender reassignment should be compared against the gender you were transitioning from rather than the one you're transitioning to.

Again, crappy ill thought out law which has had profound and unintended consequences and needs scrapping

If a space will accept all women, even those who identify as men, then they're not discriminating on the basis of gender reassignment. Otherwise they wouldn't accept those women.

If they don't accept any man, however they identify, they are discriminating on the basis of sex.

It's not difficult to understand.

I wonder how many hiring managers will be reading that court document and thinking fucking hell what a nightmare.

If any TRas think this is a win for trans rights and trans acceptance well....

Fuxake. We need to repeal the GRA and tighten up the EA2010. And while we're at it, let's get Stonewall and chums out of our institutions

Did you not read it? The transwoman was naked from the waist down in the changing room.

So, the person introduced the fact they were going commando in the first instance. And then were terrible upset others asked them about their revelation that they were going commando. Is that right?

Is the report publicly available?

Shall we just translate that to the reality of what you're saying:

"Say no to what?" - Men changing in a women's changing space

"People changing next to them?" - Men changing next to women.

"No one has the right to veto someone's right to do everyday activities in a public space" - No woman has the right to veto a man's right to do everyday activities (restricted to women in this case) in a women's space.

And yes, even if this man has a GRC, he is a man, male. The comparator for applying the Equality Act is males. Sorry if that makes you sad or angry.

It really isn't because trans women have been legally using women's space for years.

If it were banned under the EA then they would have had to have stop using them when it passed in 2010.

Not if they merrily follow stonewall law.

I really feel like women being uncomfortable in a female changing room due to a intact male being present should meet it. Women should be entitled to single sex facilities; perfectly acceptable to offer third spaces or gender neutral spaces to accomodate those who want to use them.

In which instances should biological women have the right to not be around males?
If not when either are in a state of undress, if not in prisons, if not in rape crisis centres or women’s refuges, if not when having intimidate medical care, then where?
Or are you saying there can never be places that are female only? There can never be a time females can meet and not include males?

Oh so you've changed 'right' to 'banned'.

Got it.

Just to reiterate, women have every legal right to exclude transwomen from their spaces.

And now every single NHS trust knows it. They also know that is all they have to do, to avoid litigation.

Being offered an alternative space, whilst women are getting undressed, is the very definition of a proportionate means to a legitimate aim.

If they dont want to be sued, that's all they have to do.

And now they all know it. And if they don't, we will be telling them.

@Cailleach1 - the link to the judgement has been posted a couple of times

Can anyone else not open the link to the judgement?

Oops. sorry. Will check back.

I take back what I said about strategic litigation.

Given there were 60 odd complaints which were not upheld, litigation it certainly was. Strategic? Not so much.

There were not five or side reasons the judge found for the claimant - I've copied them in an earlier post.

The subparagprahs in paragraph 152? Take out 152.5 (the one that refers to the relevant comparator being a female), and the finding of discrimination would have been the same on the basis of 152.1 - 152.4, and the fact that a non-trans person wouldn't have been treated like that (152.1 is particularly awful. I can well imagine that the TW was excessively grilled on their underwear because of their trans status).

However, as cleverer people than me have suggested, discrimination when it comes to gender reassignment should be compared against the gender you were transitioning from rather than the one you're transitioning to.

Well that's the whole problem, isn't it - it's not settled law. Some lawyers have suggested this, some think the opposite, and the government can't be bothered to take the heat out of the issue by clarifying.

They simply do not.

I would draw your attention to remarks by employment barrister Robin White:

"White noted that an employment tribunal is unlikely to find it “reasonable” for an employer to object to a trans woman using a toilet in a closed stall.

“Some people don’t like the idea that they might be in a toilet cubical next to a trans person. It’s fine for an employer to provide a separate facility, but the least discriminatory way will be to provide that separate facility for anyone who wants an additional degree of privacy, not insisting on the trans person [using it].”"

www.personneltoday.com/hr/ehrc-single-sex-spaces-guidance-could-lead-employers-into-unlawfulness/

Posting the judgement again for ease of reference (long thread): https://assets.publishing.service.gov.uk/media/62cff0578fa8f50bfafb091d/VvvSheffieldTeachinggHospitalsNHSSFoundationTrustt1806836-2020_Others.pdf

Copy/paste the whole link. If you click on it it just tries to open part, which won’t work.

@lookleft - there were two complaints. I can imagine - in the context of the 59 other complaints, the claimant would have listed them out.

What you imagine is neither here nor there. Perhaps you have as tenuous a grip on truth as the claimant does?

Eh? I don't recall reading anywhere that part of the Equality Act was aimed at ensuring men who say they're women should be able to legally use all women's spaces.

Rightfully so, the Equality Act protects those going through gender reassignment don't experience harassment or discrimination in life {though what classifies as 'going through a gender reassignment process' has become incredibly nebulous following Stonewall et als 'trans umbrella' of what trans is defined as - including cross dressers).

But the detail of the EA doesn't magically put those people who'd rather be seen as the opposite sex into that sex - another protected characteristic under the Equality Act.

Men who say they're women may have been inserting themselves in spaces designed for women for years without consent from a lot of the women in those spaces.

Which is concerning in itself.

That doesn't mean that they should be in those spaces, or that there was laws in place previously that mandated their access to those spaces. (Referencing your comment that transwomen have 'legally been using those spaces for years')

Nor does it mean that those who drew up the Equality Act thought 'Well, we could stop this apparently legal thing (that doesn't actually exist) happening by 'a ban' but hey, let's just ignore it'.

They put elements in the Act that explicitly allows services to exclude males, including those who say they're women!

You've been hoodwinked if you think anything else is the reality.

I did read it, but I accept that my previous comment wasn't well worded. My point is that a potentially naked TW in the female changing room isn't the subject of the case. The fact that the manager had previously received a report of the TW being naked was only raised incidentally in the judgment as a potential reason for the manager overzealously questioning the TW on their underwear. Nothing in the case depends on whether that was true, and nothing in the judgment affects whether or not that would be acceptable in a single sex space. The headlines that are being generated from this are really misleading.

I just want to paste the part of the judgement that relates to this person telling colleagues about their underwear, as that's being minimised upthread in a particularly ridiculous comment. Let's allow everyone to make up their own minds about this person's behaviour.

Mrs T said that the Claimant approached her on 10 June 2021 in the servery and asked for a word in private. Mrs T took her to the disposable room, which was the nearest empty room. The Claimant told her that she did not feel well. She was hot and sweaty and it was making her feel ill. Mrs T was not authorised to send the Claimant home, because there was a manager (Mrs H) on site. Mrs T knew the Claimant only had an hour of her shift left, so she suggested she take five minutes, have a drink of water and then finish her shift. At that point the Claimant told her she was so hot she had taken her underwear off, and made a wringing motion with her hands. Mrs T again suggested that she have a cold drink. Mrs T went to see Mrs H, because she had authority to send the Claimant home. Mrs T recounted the whole conversation to Mrs H, including the suggestion that the Claimant had taken her underwear off and made a wringing gesture.

I substituted initials for names as I think this site has a lot more Google visibility than the Employment Tribunal judgements repository.

Most of the other nonsense in that egregious comment is already refuted.

I am just going to point out that 152.1 - 152.4 are not "reasons the judge found for the claimant", they are (unremarkable) findings of fact. The reason is, as said so many times in this thread already including the title, the judge's belief that a "cisgender woman" would not have been asked the same questions, and that this contravenes the Equality Act because a "cisgender woman" is the appropriate comparator.