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Feminism: Sex and gender discussions

Kelly v Leonardo Employment Tribunal Thread 4

666 replies

ickky · 24/10/2025 09:14

The Tribunal has now finished and we await the judgement.

Abbreviations:

C or MK - Claimant, Maria Kelly
NC - Naomi Cunningham, barrister for C
KW - Katy Wedderburn, solicitor for C
R or L - Respondent. Leonardo UK
ST - Susanne Tanner KC, barrister for R
J - Judge
P - Panel member
GC - gender critical
GI - gender identity
AL - Andrew R Letton VP People Shared Services Leonardo - respondent witness

Tribunal Tweets coverage here

https://tribunaltweets.substack.com/p/kelly-vs-leonardo-uk-ltd

Thread 1 https://www.mumsnet.com/talk/womens_rights/5416903-kelly-v-leonardo-employment-tribunal-29th-september-10am?page=1

Thread 2 https://www.mumsnet.com/talk/womens_rights/5420656-kelly-v-leonardo-employment-tribunal-thread-2

Thread 3
https://www.mumsnet.com/talk/womens_rights/5421183-kelly-v-leonardo-employment-tribunal-thread-3

Kelly vs Leonardo UK Ltd

Tribunal will consider workplace toilet provision

https://tribunaltweets.substack.com/p/kelly-vs-leonardo-uk-ltd

OP posts:
Thread gallery
25
prh47bridge · 05/12/2025 12:20

ItsCoolForCats · 05/12/2025 12:04

Thanks again @prh47bridge. What is considered acceptable in terms of moral propriety is so subjective. And I'm not sure that women's need for privacy and safety away from men is something that evolves over time to no longer be necessary.

I find the judgement surprising because my assumption is that a judge would look at the law objectively, as it stands, not try to bend the law to what they think it should be or might be in the future. I find it worrying that a judge would do that.

Unfortunately, this is not new. Some judges do bend the law or misapply the facts to achieve what they consider to be the desired outcome. That threatens the integrity of the justice system. It leads to some litigants not getting justice and others having to appeal, sometimes all the way to the Supreme Court, to get the correct outcome. It shouldn't happen but it does.

At least our courts are not as activist as the ECHR. That court is increasingly interpreting the Convention in ways that go well beyond anything justified by its actual words. I would prefer the UK to remain within the ECHR, but the more the court behaves as an activist court, the stronger the arguments for leaving.

MyrtleLion · 05/12/2025 12:25

prh47bridge · 05/12/2025 12:20

Unfortunately, this is not new. Some judges do bend the law or misapply the facts to achieve what they consider to be the desired outcome. That threatens the integrity of the justice system. It leads to some litigants not getting justice and others having to appeal, sometimes all the way to the Supreme Court, to get the correct outcome. It shouldn't happen but it does.

At least our courts are not as activist as the ECHR. That court is increasingly interpreting the Convention in ways that go well beyond anything justified by its actual words. I would prefer the UK to remain within the ECHR, but the more the court behaves as an activist court, the stronger the arguments for leaving.

I was astonished that she went against the SC. It is the highest court in the land and its word is binding.

I look forward to an EAT judge severely reprimanding her for misrepresenting the FWS ruling.

PollyNomial · 05/12/2025 12:34

MyrtleLion · 05/12/2025 12:25

I was astonished that she went against the SC. It is the highest court in the land and its word is binding.

I look forward to an EAT judge severely reprimanding her for misrepresenting the FWS ruling.

Read paras 180-182. It explains quite clearly where the 2025 judgement applies and where it doesn't.

MyrtleLion · 05/12/2025 12:36

PollyNomial · 05/12/2025 12:34

Read paras 180-182. It explains quite clearly where the 2025 judgement applies and where it doesn't.

She's wrong.

prh47bridge · 05/12/2025 12:43

MyrtleLion · 05/12/2025 12:36

She's wrong.

She is right in that the SC judgement was about the Equality Act and does not necessarily apply to other legislation. It is not guaranteed that the words "man" and "woman" in the Workplace Regulations refer to biological men and women.

The judgement that "man" and "woman" in the EA refer to biological men and women is binding on this judge. She has been careful not to contradict that. The SC's reasoning in arriving at that conclusion is not binding on her. However, one of the reasons I think an appeal will succeed is that her reasoning in deciding to interpret the Workplace Regulations to allow trans-identifying men into the women's directly contradicts the SC's reasoning. That strongly suggests that, were the Workplace Regulations to come before the SC, they would decide that "man" and "woman" in those regulations do indeed refer to biological men and women.

PollyNomial · 05/12/2025 12:47

MyrtleLion · 05/12/2025 12:36

She's wrong.

Because?

Keeptoiletssafe · 05/12/2025 12:48

To add to @prh47bridge Disabled toilets point, one of the reasons they are called Accessible now is precisely that they are accessible for those who need them eg. To change a stoma bag. Personally I would like accessible provision within single sex areas, after researching vulnerabilities of disabled toilets. Many of the worst sexual assaults in toilets in public places happen in these private, mixed sex, larger toilets. As far as I aware, no woman or child pulled a red cord alarm in these incidents. It was only after bravely telling someone after the incident that anyone knew. It is so important that these toilets are closely monitored as they misused for drugs and sex due to the privacy.

There are certain disabilities and conditions where the extra space and grab rails may not be needed but the ability to be noticed if you collapse without warning is necessary. For that there should be single sex toilets with door gaps as a reasonable (!) adjustment .

The HSE list an example of reasonable adjustment for a change to a workplace toilet. It is for a man who has prostate cancer where the workplace puts a sanitary bin in the men’s toilet. There’s a campaign ‘bins for men’ that promote this too.

I know of incidences where people with pots, epilepsy, overdoses, cardiac arrests, heart conditions, strokes, other brain conditions, asthma, people choking, self-harm have all collapsed in toilets. Some of these would be disabilities where the outcome won’t be favourable if this judgement stands. Because if anyone can go in to any toilet, all the designs will be floor to ceiling. I have seen in happen in schools with bad results as there is no choice but to use toilets where all the above to happen. As a reasonable adjustment, all larger workplaces should have toilets with door gaps as the default main provision. That can only mean single sex designs.

At the time of the 1992 Health &Safety legislation, the Building Standards promoted the advantages of door gaps for ventilation, hygiene, prevention of misuse and supervision. This is what the legislators would have had in mind.

No one has ever risk assessed or equality impact assessed floor to ceiling designs properly. Where it SHOULD have happened for Document T, the conclusion for designs for those with long term health conditions was that they recommended enclosed designs, based on literature evidence as they were preferred by transactivists in New York nightclubs. It’s all there in the government consultation.

If anyone wants links, just ask.

We are letting the most vulnerable people down by not risk assessing and doing equality impact assessments.

SternJoyousBeev2 · 05/12/2025 12:48

prh47bridge · 05/12/2025 12:43

She is right in that the SC judgement was about the Equality Act and does not necessarily apply to other legislation. It is not guaranteed that the words "man" and "woman" in the Workplace Regulations refer to biological men and women.

The judgement that "man" and "woman" in the EA refer to biological men and women is binding on this judge. She has been careful not to contradict that. The SC's reasoning in arriving at that conclusion is not binding on her. However, one of the reasons I think an appeal will succeed is that her reasoning in deciding to interpret the Workplace Regulations to allow trans-identifying men into the women's directly contradicts the SC's reasoning. That strongly suggests that, were the Workplace Regulations to come before the SC, they would decide that "man" and "woman" in those regulations do indeed refer to biological men and women.

I look forward to this matter being dealt with by the EAT, then hopefully that will shut off yet another activist argument.

The idea that lawmakers intended a different meaning of the words 'sex' 'man' and 'woman' in the 1992 Regs (espcially when the requirement was for seperate provision for men and women) than has been determined apply to the EA 2010 is incoherent.

Alpacajigsaw · 05/12/2025 12:53

When push comes to shove she’s basically said that men are allowed into women’s toilets as a proportionate means of achieving a legitimate aim, and that women can go elsewhere if they don’t like it.

How the hell can that possibly stand after FWS?

And the statement that people can’t tell the sex of colleagues is just mind boggling in its stupidity. There’s another unrelated thread running about a 2 year old who cries when she sees a man at nursery. So she can tell sex at 2 years old but grown adults can’t? Come on

NebulousSupportPostcard · 05/12/2025 12:54

prh47bridge · 05/12/2025 11:18

Why has the judge gone down this route?

At one point she says, "Moral propriety is a social construct and standards of decency change over time, and accordingly it must be interpreted in a modern context."

I think that sentence is very telling. I think this judge believes that allowing trans women to use the women's facilities is in line with current standards of decency and moral propriety. Starting from this position, she has, in my view, bent the law to accommodate her beliefs. It wouldn't surprise me to find that she thinks the SC got FWS wrong. She certainly does not seem to accept the SC's reasoning.

I'm sure she genuinely believes she is right. She may believe her reasoning is sound and that the higher courts will uphold her judgement. If she does, I suspect she will be disappointed.

A couple of twitter posts have noted that propriety is mentioned in Reg 24 re changing rooms but not Reg 20 toilets. eg https://x.com/Scott_Wortley/status/1996240299056623994?s=20

MyrtleLion · 05/12/2025 12:57

PollyNomial · 05/12/2025 12:47

Because?

Because the 1992 regulations were drawn up when the meaning of man and woman referred to biological (such an unnecessary term which is why it wasn't spelled out in the regulations) men and women. Because everyone knew (as indeed they still do know today) what a man and a woman are.

As the SC made clear as follows (from https://knowingius.org/p/myths-about-for-women-scotland-v)

The judgment mentions sanitary conveniences or facilities several times.

First, at paras 41-42 discussing the Sex Discrimination Act 1975:
41 Certain exceptions were built into the legislation, some of which were repealed long before the whole Act was superseded by the EA 2010. For example, according to section 6(3) as originally enacted, the prohibition on discrimination under section 6(1) and (2) did not apply to employment '“for the purposes of a private household” or where the number of people employed was not more than five. The exception for small employers was repealed by the Sex Discrimination Act 1986 and the private household exception re-enacted in a much narrower form by section 1(2) of the 1986 Act, limiting it to where objection might reasonably be taken by a person living in the home to physical or social contact with someone of the opposite sex.

42 Section 7 of the SDA 1975 as enacted provided the exception which is reflected in the subsequent legislation, namely that discrimination is not unlawful where sex is a genuine occupational qualification (“GOQ”). The exception does not apply to discrimination in the terms and conditions on which a woman is employed; once a woman has been engaged in the job, there can be no genuine occupational reason for giving her less favourable terms and conditions than her male colleagues. The circumstances in which the defence of GOQ could be relied upon included the following:

(a) Where the essential nature of the job called for a man for reasons of physiology (other than physical strength or stamina), or for reasons of authenticity in dramatic performances: section 7(2)(a);
(b) Where the job needed to be held by a man to preserve decency or privacy because it was likely to involve physical contact or where men would be in a state of undress or using sanitary facilities: section 7(2)(b);
(c) Where the job holder had to live in premises provided by the employer and there were no facilities to accommodate women either to sleep separately or to use sanitary facilities. This was subject to the proviso that the exception applied only if it was not reasonable to expect the employer to provide separate facilities: section 7(2)(c);
(d) The job holder worked in a prison or hospital where all the people present were men and it was reasonable that the job should not be held by a woman: section 7(2)(d).

Second, at paras 50-53 summarising the meaning of sex within the Sex Discrimination Act 1975:
50 What we draw from this consideration of the SDA 1975 are the following points.

51 First, there can be no doubt that Parliament intended that the words “man” and “woman” in the SDA 1975 would refer to biological sex - the trans community of course existed at the time but their recognition and protection did not.

52 Secondly, the legislation recognised and accommodated the reasonable expectations of people that in situations where there was physical contact between people, or where people would be undressing together or living in the same premises, or using sanitary facilitiestogether, considerations of privacy and decency required that separate facilities be permitted for men and women.

53 Thirdly, a range of other exceptions were considered necessary and reasonable, particularly (a) in relation to sport and competitive activity where typical masculine physique would give an unfair advantage and (b) where positive action was needed to ensure that there was a reasonable representation of men and women on the boards of certain bodies.

Third, at paras 222-224 in the context of communal accommodation within the Equality Act 2010:

222 There is a specific exemption for communal accommodation in Schedule 23, paragraph 3 which allows for both sex discrimination and gender reassignment discrimination as follows: “(1) A person does not contravene this Act, so far as relating to sex discrimination or gender reassignment discrimination, only because of anything done in relation to - (a) the admission of persons to communal accommodation; (b) the provision of a benefit, facility or service linked to the accommodation.”

223 Communal accommodation is defined as follows:

“(5) Communal accommodation is residential accommodation which includes dormitories or other shared sleeping accommodation which for reasons of privacy should be used only by persons of the same sex.
“(6) Communal accommodation may include - (a) shared sleeping accommodation for men and for women; (b) ordinary sleeping accommodation; (c) residential accommodation all or part of which should be used only by persons of the same sex because of the nature of the sanitary facilities serving the accommodation.”

224 Here too it is plain that sex has its biological meaning. The Inner House however, held at para 59 that “sex” in this context is defined as including birth sex for those still living in that sex, and “acquired sex” for those in possession of a GRC in the opposite gender. In our judgment, this would undermine the very considerations of privacy and decency between the sexes both in the availability of communal sleeping accommodation and in the use of sanitary facilities which the legislation plainly intended to provide for. If sex has a certificated sex meaning it is difficult to envisage any circumstances in which this gateway could sensibly be met since there would be no rational basis for saying that “for reasons of privacy” any communal accommodation and sanitary facilities should be used by women and trans women with a GRC (so legally female but biologically male) only, but not by trans women without a GRC who may be indistinguishable from those in possession of a GRC (and vice versa). This interpretation would run contrary to the plain intention of these provisions.

The Sex Discrimination Act 1975 governed the regulations in 1992 and therefore man and woman mean biological man and woman.

Myths about For Women Scotland v The Scottish Ministers

Since the Supreme Court handed down its decision in For Women Scotland v The Scottish Ministers in April 2025, there has been an avalanche of misinformation about the what the ruling says, what is mentions, and what it doesn’t mention.

https://knowingius.org/p/myths-about-for-women-scotland-v

Legobricksinatub · 05/12/2025 12:58

So is her argument that the workplace regulations definition of male and female toilets actually means mixed sex? If so when is she saying it is fine for one or two men to enter when actually if those words have no meaning then all men can? Or is she saying the GRC applies in this case? In which case only men with a GRC can enter which she didn’t say? And why would those regulations even stipulate male and female if they were accepting of mixed sex?

Shortshriftandlethal · 05/12/2025 12:59

What is the likely timetable for the appeals process to be registered and then heard?

Keeptoiletssafe · 05/12/2025 13:02

SlackJawedDisbeliefXY · 05/12/2025 12:05

I have always wondered who uses the open air 'public urinals'. Recently spotted some on Cambridge Circus outside the Palace theatre (Harry Potter and the cursed child)

That’s because men (sorry to be blunt to men on here) can just whip it out and wee. It tends to be on buildings and can lead to corrosion. Which is why for centuries we have had urine deflectors built into buildings.
The phrase ‘spend a penny’ comes from charging for loos. Urinals were free - anything to encourage men to use them.

Men had public toilets long before women. I have seen some drawings of the first ones for women. They had far less toilets but more sinks per toilet. The sinks for the men were in a different room. It appears that it wasn’t thought that necessary for men to wash their hands.

There are lots of sex-based differences in toilet use which haven’t changed over time Judge, because they are biological reality.

Alpacajigsaw · 05/12/2025 13:13

Legobricksinatub · 05/12/2025 12:58

So is her argument that the workplace regulations definition of male and female toilets actually means mixed sex? If so when is she saying it is fine for one or two men to enter when actually if those words have no meaning then all men can? Or is she saying the GRC applies in this case? In which case only men with a GRC can enter which she didn’t say? And why would those regulations even stipulate male and female if they were accepting of mixed sex?

I think she didn’t quite say that but because there were sufficient single occupancy toilets it was OK if some men used the ladies.

Londonmummy66 · 05/12/2025 13:14

I've discussed this with several barristers over the last couple of days and most think she rushed to get this out before the Peggie case. It would explain why its so shoddy although she is captured apparently so has certainly exercised significant ingenuity to make the law fit her beliefs. That doesn't make for good law though nor is it justice for Maria or the rest of us.

Legobricksinatub · 05/12/2025 13:17

Alpacajigsaw · 05/12/2025 13:13

I think she didn’t quite say that but because there were sufficient single occupancy toilets it was OK if some men used the ladies.

So the regulations intend for toilets labelled ‘male’ and ‘female’ to be mixed sex?

ItsAllGoingToBeFine · 05/12/2025 13:20

Londonmummy66 · 05/12/2025 13:14

I've discussed this with several barristers over the last couple of days and most think she rushed to get this out before the Peggie case. It would explain why its so shoddy although she is captured apparently so has certainly exercised significant ingenuity to make the law fit her beliefs. That doesn't make for good law though nor is it justice for Maria or the rest of us.

This has been mentioned a few times in thread. I'm probably being stupid but why would it be important to get this judgement out before the Peggie one? Is the hope that this judgement would influence the outcome?

theilltemperedmaggotintheheartofthelaw · 05/12/2025 13:22

SternJoyousBeev2 · 05/12/2025 12:48

I look forward to this matter being dealt with by the EAT, then hopefully that will shut off yet another activist argument.

The idea that lawmakers intended a different meaning of the words 'sex' 'man' and 'woman' in the 1992 Regs (espcially when the requirement was for seperate provision for men and women) than has been determined apply to the EA 2010 is incoherent.

Edited

I think she's saying that WR1992 did intend to apply on the basis of sex but that employers have a discretion to bend the rule exceptionally, and this does not contravene EA2010 because EA2010 does not govern WR1992.

She did also say that policing was unworkable so there's no point worrying about GRCs....

MarieDeGournay · 05/12/2025 13:23

ItsCoolForCats · 05/12/2025 12:04

Thanks again @prh47bridge. What is considered acceptable in terms of moral propriety is so subjective. And I'm not sure that women's need for privacy and safety away from men is something that evolves over time to no longer be necessary.

I find the judgement surprising because my assumption is that a judge would look at the law objectively, as it stands, not try to bend the law to what they think it should be or might be in the future. I find it worrying that a judge would do that.

I agree - if anything, the trajectory of 'moral propriety' as far as toilets is concerned is back towards single-sex provision - the version of building regs which require separate single-sex toilets, unless there isn't enough space, is very recent, 2024
Approved Document T - Toilet accomodation
and although I can't find it now I have read a rationale for it which explicitly says it is in response to the public's wish for separate single sex toilets.

It is a configuration which worked OK for ages, it worked pretty well just on trust, 'the good men stay out so the bad ones stand out', and older buildings already have women's men's and more recently accessible toilets.
So if there hadn't been this irrational drive for costly and disruptive fourth spaces everywhere at the behest of a tiny proportion of the population, most buildings would still be providing toilets in a way which met with general approval.

Newbuilds are subject to the requirements of Doc T.

The judge appears to have a very limited and sectional awareness of current 'moral propriety'..

PS - Thanks to SRB and NSP for taking my 'hang on a minute..' in the spirit in the spirit intendedSmile

theilltemperedmaggotintheheartofthelaw · 05/12/2025 13:25

It's one of those nightmares where you wake up and then discover you're actually still trapped in the nightmare.

I know that maybe only 20% of British people think it's OK for people to falsify their ID or for men to use women's toilets, but this Judge is one of them, she's in a powerful position, and she's not alone. Institutions are riddled with it, and they're just going to merrily carry on screwing over women (and gay and religious people) if they can get away with it.

The 80% have plenty of other things to worry about, so we can't necessarily expect them to man the barricades with us. But can we even rely on the judiciary, when eg the UN and the Council of Europe are captured? Maybe FWS was the last gasp of reason.

BTW my trans friends are currently in tears about the way that J K Rowling's vicious billionaire-backed lawfare has forced terrible choices on GG and the WI, and see themselves as the vulnerable victims of a hostile world, so our worldviews are somewhat at odds.....

MarieDeGournay · 05/12/2025 13:29

Legobricksinatub · 05/12/2025 13:17

So the regulations intend for toilets labelled ‘male’ and ‘female’ to be mixed sex?

Separate single-sex toilet facilities are provided. Universal toilets can be provided in addition to single-sex provision and where space allows. All toilet accommodation should have clear and appropriate signage.
Doc T p.4
Approved Document T - Toilet accomodation
a sign which indicates 'women' means it is not for mixed used.

Legobricksinatub · 05/12/2025 13:33

theilltemperedmaggotintheheartofthelaw · 05/12/2025 13:22

I think she's saying that WR1992 did intend to apply on the basis of sex but that employers have a discretion to bend the rule exceptionally, and this does not contravene EA2010 because EA2010 does not govern WR1992.

She did also say that policing was unworkable so there's no point worrying about GRCs....

So employers are able to ignore the regulations if it suits them?

Alpacajigsaw · 05/12/2025 13:34

Legobricksinatub · 05/12/2025 13:17

So the regulations intend for toilets labelled ‘male’ and ‘female’ to be mixed sex?

So it seems but oh it’s ok because the apex court of the United Kingdom only decided sex for the purposes of the Equality Act, meaning all minor courts below them can pull different meanings for different pieces of legislation out of their arses.

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