There was never a formally adopted policy that transwomen are allowed to use the female CR (possibly because even the incompetent managers knew that would be a step too far in law).
On the contrary, the Trust first adopted a "Transitioning in the Workplace Policy" in February 2019.
10.2 Appendix 2 – A Guide for Managers & Employees
Any person transitioning needs to be certain that their employer is committed to and supportive of their needs. Managers therefore need to make it clear that in the event of an employee transitioning, measures are in place to facilitate this and ensure they are committed to engage with, and support, the employee at all stages. The needs of transitioning colleagues will be personal to each individual, Trust employees who transition will be fully supported by their line manager who will work with them to understand their specific needs to ensure a successful workplace transition. Issues, which may be considered by the individual and the manager, include: . . .
- Agreeing the point at which the individual will commence using gender neutral /single sex facilities in their affirmed gender, for example toilets and changing areas. This should occur from the time that the employee wishes this to start as some staff members may prefer to continue to use the same facilities as they used to in the early stages of transition. They are legally allowed to use any toilet facility they prefer and the choice should be theirs.
Use of Single Sex Facilities
An area of consideration can be the use of gender specific toilets and wash room/shower facilities.
Good practice indicates that facilities such as toilets and changing rooms should be accessed according to the employee in their gender role. Since this is an area which can cause concern for employers and other employees, it may be helpful to think of this in terms of a Trans woman being a woman and the Trust allows all women to use women’s facilities. The same principle may be applied to Trans men.
The Trust supports non binary employees to use any facility which is most appropriate to them.
Accessible toilets may be provided as an alternative for any person, whether Trans or not, who does not wish to share with others. If someone does not wish to share a toilet with a Trans person, then it is they, not the Trans person, who must seek other facilities.
10.4 Appendix 4 – Frequently asked Questions
Employee – an individual wishing to transition whilst working for CDDFT
Q – Will I be able to use the facilities-toilets and changing rooms which match my gender identity?
A - Yes, you may also use accessible toilets if you prefer.
Nov 2021 Version 2 ratified following a "Full Review":
Significantly, the only change to the above paragraphs is that the subheading "Use of Single Sex Facilities" was changed to "Use of Gender Specific Facilities"
Version 2 was due to "Expire" and to have been Reviewed by Nov 2024.
However, In Nov 2024 the Expiration date was extended to Feb 2025
24 March 2025 Version 3 ratified following a "Full Review"
Brief Description of revisions made
Draft Updated following Rainbow Badge Assessment and to bring it in line with the Regionally agreed best practice template. In addition to include reference to Resolution Procedure where gender critical views are expressed over use of facilities and to incorporate amendments suggested by Trust solicitors.
Some relevant changes:
5.8 Changing and Showering and Toilet Facilities
Where possible, trans and non-binary staff should be supported to use facilities that align to their affirmed gender, if it is their choice to do so.
A trans or non-binary person should not be forced to use accessible gender neutral facilities, but can choose to if they would feel more comfortable doing so.
Any concerns raised by others will be dealt with promptly and sensitively and harassment of the trans, non-binary or person raising the concern will not be tolerated.
Where there is objection from other staff about trans or non-binary staff using single sex changing, showering or toilet facilities due to their religion or belief, careful consideration of balancing the rights under the Equality Act 2010 of both sides must be taken into account by the manager that does not favour one side or the other.
Where possible all options should be considered and alternative arrangements should be made, however where a mutually agreeable solution cannot be informally reached, this should be referred to the Resolution Policy or Dignity at Work Policy – whichever is most relevant to the situation.
9.3 Appendix 3 – Frequently asked Questions
Staff member – an individual wishing to transition whilst working for the Trust
Q – Will I be able to use the facilities, toilets and changing rooms which match my gender identity?
A - Yes, you may also use accessible toilets if you prefer. You can discuss and agree this with your manager as part of your Support Plan, including how others will be consulted about these arrangements.
Version 3 was due to Expire in March 2028.
All these versions can be downloaded here:
Provision Single Sex Spaces
Freedom of Information request to County Durham and Darlington NHS Foundation Trust
https://www.whatdotheyknow.com/request/provision_single_sex_spaces#incoming-3046098
I understand from evidence given in the Tribunal that Version 3 was withdrawn about a month later in April 2025, following the Supreme Court Ruling in For Women Scotland v The Scottish Ministers:
https://supremecourt.uk/cases/uksc-2024-0042
However, I find it odd that it was stated in Court that this means that the Trust has had no policy covering the issues in "Transitioning in the Workplace" Version 3 since April 2025.
Employers normally have a "Status Quo Agreement" with Trade Unions. What this means is that nothing changes until a new agreement is made. Employers do not withdraw Policies and Procedures in the expectation that there will be anarchy until new ones are agreed.
The only options that make sense are that either:
- CDDFT Management intended that Version 3 would continue to be applied until it was re-ratified or a revised policy was issued or
- it intended that the Policy would revert to Version 2 for such time.
If instead it intended that Managers and HR would just make things up as they went along then that is the new Policy, whether it is written down or not.
I was hoping that CDDFT Managers and HR would be asked to explain what the situation has been since April 2025 and what they would expect Staff, Managers and HR to do.
Finally, there seems to have been a loophole in all versions of the Policy that was exposed by the circumstances of Rose/Tyler Henderson's employment with the Trust. The Policy deals with existing employees who decide to "transition" after then have taken up employment with the Trust.
I am sure that more than one Management witness explained that RH had not "been through the policy" because he was first on Trust premises as a student and his "transitioning" at that time was dealt with by the University of Teesside.
RH started in employment with CDDFT some time in 2019. The first version of the policy was ratified in February 2019. His Manager, Tracy Wainwright, said that there was no need to invoke the "Transitioning at Work Policy" because she had known RH while he was at University of Teesside and they had dealt with everything. Whatever "everything" was.
Students on placement still seem to have been excluded from the Policy although Version 3 is more comprehensive than previous versions.
Version 3
3 Scope
This policy applies to:
- all employees, officers, consultants, self-employed contractors, casual workers, agency workers, volunteers and interns.
- persons who, although not employed by The Trust, have authorised access to the Internet through the equipment owned or managed by The Trust. This includes staff working for any affiliated organisations.
The ‘CDDFT Group’ includes CDDFT and its wholly owned subsidiary; County Durham and Darlington NHS Services (CDD NHS Services). Any reference to the ‘Trust’ shall be interpreted as a reference to the Trust Group.
This policy does not form part of any contract of employment or other contract to provide services and we may amend it at any time.
(Apologies for wall of text!)