Tribunal discussion thread supporting FayeRC in case against NHS England starting 16/03/26

[Jimmyneutronsforehead]

Thanks for joining in this discussion in support of @FayeRC and the case against NHSE.

This is a private tribunal case, so there will be no live viewing, however TT will be covering and I'll be doing my best to cover it here, however my Monday has become very busy, so any support from PPs is welcomed!

Groundskeeping rules, let's all remain respectful in our discussions. I'm sure TT will cover the Judges expectations for coverage in the morning. This should be a lot smoother as this tribunal isn't open for public viewing and so a lot less scope for error, however discussion should be about what is accurately being reported on and not misrepresented.

FayeRC is a pseudonym and so I ask that if anybody recognises FayeRC throughout the tribunal we respect the anonymity requested.

There will also be current, and frequent gardening requests on the crowd justice page, please search Faye Russell-Caldicott crowd justice if you can support. We have less than 17 days to help raise another £40,000.

"I have issued an employment tribunal complaint against NHS England for indirect discrimination on the basis of sex (women), religion (Islam), philosophical belief (gender critical) and disability (PTSD) for having a policy in place which effectively renders the supposed single-sex toilet, changing room and showering facilities as mixed-sex.
According to NHSE’s trans staff policy, transwomen (born males) can use female facilities in addition to male and gender neutral facilities. Which means that NHSE expects women to share female facilities with biological males. If a woman is not happy with that, she is directed to use the gender neutral toilets, and transwomen (males) can continue using the female facilities. The policy is blatantly discriminatory against women, especially in those office bases where the showers are open plan.
Simultaneously, my claim also includes claims of direct discrimination, harassment and victimisation related to my philosophical belief (gender-critical).
This is one of the first cases in England where a court will be asked to decide whether such a trans staff policy is discriminatory against employees with other protected characteristics. There has been no Equality Impact Assessment conducted in relation to the policy. When developing the policy, NHSE did not thoroughly consider the needs of women or the implications of trauma and religion, or the normal and common boundary a female member of staff might assert that she just simply does not want to shower in direct line of sight with a biological male.
The response from NHSE has been extremely disappointing. I have been told that all staff members are expected to follow the policy. I have been told that NHSE is already offering single-sex female facilities, which can be used both by “those born female, and those who identify as female.” Their rationale for not excluding transwomen from women’s facilities is that “even if there would only be one transwoman excluded from the female facilities, we would consider that unjustifiable unlawful discrimination.” In its response, NHSE effectively denies the relevance of biological sex as the basis for single-sex spaces.
My claim is that the current staff policy is discriminatory on the basis of sex, religion, belief and disability and the facilities should be made female-only by excluding males.
I will be applying for full anonymity, which will be essential for me to take the case forward, given my personal circumstances. If my application for anonymity is not accepted at the preliminary hearing, I will pass all remaining donations to another case of my choice which seeks to secure women’s single-sex facilities or services.
Please help by donating and sharing the link. Like with all court cases, there is a risk of losing. This crowdfunding pays for my legal fees. I will not be benefitting financially from the crowdfunding because the money raised will go directly to my legal team’s client account. Any compensation from the employer is likely to be modest. I am pursuing this case because women’s rights to safe spaces, safeguarding and consent should not be overridden.
Yours faithfully,
Faye Russell-Caldicott"

From FayeRC's own thread, here is the broad summary of events that has lead to this tribunal:

• A male colleague transitioned in 2022. We were told the person would use facilities of their preference. Staff in my Directorate were told what was expected from us and this was in effect immediately.
• We had open plan changing room and showers and usual cubicle toilets.
• I am an actual woman, Muslim, gender critical and have PTSD. I cannot share facilities with males.
• Following this, I raised in 2022 that facilities were effectively mixed sex. NHSE disagreed and said they were offering single-sex facilities for those born female and those who identified as female.
• Raising these issues internally was extremely difficult for me and did not lead to any changes to staff policy. I argued ‘sex’ in EqAct 2010 meant biological and therefore could not include males who identified as women. They did not agree. Their interpretation was that if even one transwoman was excluded from female facilities that was discrimination on the basis of gender reassignment. I did tell them nearly all transwomen retained their penis and those who had it removed were males nevertheless.
• I was effectively pushed out from female facilities to use gender neutral toilets which I have continued to use to date.
• One would have thought Fife, Darlington and SC ruling were helpful but they have not prompted any changes to policy to date.
• After SC ruling an all staff announcement was made in support of everyone, including those with trans supportive views and ‘other views’. Policy was put on hold and under review but not removed. It remains so for nearly a year later.
• They have been waiting for EHRC guidance (on public service provision). I have told them they are waiting for a wrong piece of guidance. This is an employer-employee matter.
• Policy was created with support from trade unions, Stonewall and GIRES. No women’s organisations, trauma support organisations or religious organisations were involved in policy drafting.

As mentioned earlier, I'll do my best to keep up with TT, but I've had a curveball thrown at me this weekend which will take up a chunk of Monday, however I shall keep you all posted so if somebody can take over when I am not available for all those that aren't on TwiX that would be great, alternatively I'll be sure to post the summaries at each break and redirect to Nitter in the interim.

Thank you to everybody who has already shown FayeRC their support, let's get this some traction and help a fellow wim out.

SC: I can't think of any other area where there have been such shifts in relation to employment.

Well toilets have always been a barometer for society. Robin Moira White, when working on the railways, said the men always had to check the mens toilets to clear the men out so women could use them. There weren’t any women’s toilets for staff when Robin worked on the railways. It wasn’t that long ago that women were refused jobs because there wasn’t a women’s loo. Women have still not got equal provision.

SC: we ask tribunal to consider evidence of VH, and evaluate whether any intent there. SC: Much of cross-ex of VH was about what she had not done, not what she did. R very clear that there was no intention to harass.

SC: Never any hint LS might face disciplinary action for raising complaints and indeed in grievance process LS said she had felt listened to.

SC: In this case - there is no evidence before you to show any intention behind anything that you might find to be harassment.

SC: J subject to any Qs from you, those are my submissions.

J: No questions. Miss CUnningham?

NC: Like SC I won't take you through my written subs but instead will address SC points.

Just to warn you I can’t C&P this afternoon.

Don't worry I've got this! Managed to bag a spot in the car park with 4 out of 5 bars of signal

NC: Am grateful to SC for withdrawal of ref to intemperate and emotive language, but do want to comment here. Totalitarian control of language has been a feature of gender ideology, to extent that until recently even in court cd not name reality

that TW are men.

NC: That taboo is in retreat, particularly since FWS, but it's one that is still being quite viciously defended - including in this case. In Sandie Peggie case there were calls for public to prevent J and me speaking as we wished.

NC: The same individual has talked in context of this case of 'decommissioning' me. This is part of the totalitarian attempt to prevent - even in court - the use of plain language.

NC: That viciousness is why I ask this tribunal (and I appreciate again SC withdrawal) to also refrain from criticising language, and tone policing.

NC: On the substance. SC says at #5 that the police was 4 years before Forstater and 8 before FWS and was essentially the same as every other body's. This is of course true.

NC: The campaign to achieve that was yes extremely successful. Even the MoJ was a Stonewall Champion. The older version of the ETBB is full of alarming activist language - now not only removed but warned against, in the latest version.

NC: Would like to note that it was not just that there was no women's staff network consulted - no groups representing women sought or consulted.

NC: SC talks of hindsight - that gender critical beliefs not protected until 2021, that TW are men until 2025. But the tribunal must use hindsight. All these judgments - and others - declare the law as it is and always was.

NC: Tribunal must use the hindsight of what we now know the law to be. NC: Of course nobody could necessarily foresee the Supreme Court ruling. But

that's not the point.

NC: Questions of moral culpability and forgiveness are not for this tribunal - here it's only about legal liability.

NC: SC talks of the practical implications for workplaces, and uses the example of a tiny company with just two toilets M and F. NC: This is not this case.

NC: In any case will be very rare. If so few staff that there is no accessible separate toilet then the chances are that every single loo, perhaps the only one, is a single-occupancy stall.

NC: In any case, it's not clear why it would be a problem. If the argument is that a TW is unsafe in the M loos at work then the issue is about the male staff - and the idea that giving those M staff the permission to use the ladies is bizarre.

Ohhh - I just googled Quarry House too (yep, Lego Kremlin 🫩), and it's the site of Quarry Hill Flats, which I recognise from the work of Leeds photographer Peter Mitchell. They were ugly but way more interesting and photogenic than what replaced them.

Apologies for the digression. I've never even been to Leeds. 😟

Thank you for your hard work, @Jimmyneutronsforehead .. I’m not following closely, just checking in at intervals to see how it’s going.

NC: It is fanciful idea to say that a male member of staff - however dressed - cannot use the M loos. Or it is once you take off the Stonewall spectacles.

NC: SC uses the exact point I put to Mr McM - the increase of footfall in the accessible toilet. This takes him no further; I discussed with Mr McM that the footfall would be less if the male TW use it.

NC: SC argues that a biological-sex rule is not enforceable - but that is no reason not to have such a rule. C could have a much higher confidence of only finding women. And, more importantly, that if there was a man there management would support her and deal with it.

I love Naomi. These points are so clearly made.

And, more importantly, that if there was a man there management would support her and deal with it.😁😁

NC: SC para 12 - says R is not acting in isolation in waiting for statutory guidance. But the law is the law, the law was stated by SC in FWS 16/4/25

NC: EHRC has powers to publish statutory guides to assist employers, but that does not mean the law is not binding until they do. The law is as it has been

since 2010.

NC: These points may go to the R's moral culpability, but, that is not the issue for this tribunal, which is legal liability.

NC: SC says that the court users here have not been told to use the loos per biological sex. Perhaps they are. But so what? If everyone is failing to follow the law, so what? It would be a very novel defence.

It would be a very novel defence.

😀
Lawyer speak for "completely batshit"

NC: I think SC argues that R was entitled to act on its contemporanous understanding of the law. But that['s not so. R was obliged to follow the law as it is, not as R thought it was.

NC: SC says the issue of the policy deliberately discouraging dissent is not part of the claim, but that's not so, it's the purposive part. It's true I did not ask VH about her personal intentions, because it's not suggested that it was her intentions.

NC: But if you read the policy, particularly with the GIRES doc it endorse, it must be taken to intend its own consequences; and it says, ppl must be treated as W or M, must be allowed to use loos, everyone must use pronouns -

NC: Taken together, if there is a male colleague, you've know him for 10 years, perhaps you know his family, he comes in one day and says "I identify as a woman" and suddenly you can't object if you meet him in the ladies, you have to call him a woman.

NC: Even if he is like "Alex" in the GIRES document and has a full beard and only wears a few bangles, you have to play along with the pretence - yes pretence -

that he is a woman.

NC: You have had LS evidence that she was terrified after the 'awareness' coffee morning, and the warnings about harassment and discrimination, and having to obey the pollicy.

---

Just nipping into the playground. Be 5-10 mins behind for now but will catch up.

What shifts?
The NHSE policies in relation to women were unlawful then and still are?

NC: Para 22. SC says that if this claim is well founded then every employer with a similar policy, including gov depts - see the scale of the reach of transgender ideology - will be liable for indirect discrimination.

NC: That is the "floodgates" argument. This tribunal's task is to look at this claimant. This tribunal does not need to worry about unknown numbers of other women, only this C.

NC: SC talks of R aims being to adhere to the EA as it was understood at the time. But adhering to a mistaken understanding of it cannot be a 'legitimate aim', even if the mistake is perhaps understandable.

NC: Re the building ownership - I did not address that because it's not what the C is claiming, about the physical fabric of the building. It was about the R policy of how that fabric was used.

NC: Re the ground floor showers -

raised as context of R lack of care around women's comfort and safety, R cd have asked for designation as M and F but did

not.

NC: The common changing area - once one or two men start using that area it effectlvely becomes a M-only space, as most women will not want to use it. I repeat, not designating as separate M and F is example of R lackadaisical re women.

NC: Want to ask tribunal to pay attention to the specific difficulties LS had - and SC has kindly said that her evidence was in full good faith. And note that she said why she hardly ever felt able to use them.

NC: [Missed a short bit]

NC: It is not disputed that it's open to an employer to provided fully enclosed single-person facilities, under 1992 regulations.

NC: But point is that if an employer makes communal spaces mixed sex by allowing some of opposite sex in, then it is failing under 1992 regs to provide the SS spaces required.

NC: Now it's possible that a large building with lots of single user rooms has enough of them for all its staff to use, and it might then not matter that all communal areas were mixed sex. But I find it hard to think any employer would have such over-provision.

NC: SC notes that LS at one point said she was happy with the showers at Wellington Place, but you should also note that she later realised the problems with them.

NC: And it is about having the confidence that men will not be undressing in front of her - not just whether or not a man actually

was.

NC: Those were my comments on SC para 30, but would also like to say re that that the para misunderstands I think the nature of indirect discrimination. Which involves the PCP - and the R has no idea of the magnitude of it because it took no steps to find out.

NC: At para 41, SC returns to Q of timing and hindsight, re the purpose of the policy, that 2017 was 4 years before Forstater. But I say that's a point in the C's favour.

---

BRB, icecream van now.

Flake and sprinkles for me please 😋

NC is a joy to listen to. So succinct and specific.

I'm imagining NC pausing mid submission to nip out to get a Funny Feet lolly

NC nailing all the points home so far.

I'm enjoying the pause for 99s all round. Every tribunal has it's unique diversions.

NC: That at that time it had never occurred to anyone that gender critical beliefs were to be respected [missed]

NC: If the purpose of the policy was to suppress dissent from gender ideology, which I say it was, then it doesn't matter that dissent didn't then have a name as 'gender criticial'. And like FWS, Forstater is a statment of the law as it laways was.

NC: SC says, LS didn't use the showers at either QH or WP. That is not the point, which is that she did not have the option to. They were provided for all employees - unless they were women who didn't want to share with men.

NC: It was reckless of the safety and dignity of its female employers - an astonishing way for R to behave.

NC: VH with hindsight appeared quite shocked by the implications of the policy, particularly re the open showers. And yet nobody in 2017 took any thought at all for the real effect on women of a policy generated by activism of orgs like Stonewall and GIRES.

NC: An org like NHS England - if you think about it rationally, it's astonishing that nobody at NHSE saw that problem, or saw it and didn't mention it. It's astonishing that gender ideology was so much adopted and acted on

NC: In oral submissions SC said re this point, that this was not R adopting a belief but only of respecting those with a gender identity, and that's different.

NC: I agree that's an important distinction. NHSE of course should respect metaphysical beliefs, religious beliefs, philosophical beliefs. Should not discriminate on basis of beliefs, or harass staff. Maybe even accommodate them, to an extent.

NC: But it should not adopt any of those beliefs. And I say NHSE has clearly crossed that line; it accepted the belief system, and required its staff to accept it too or at least to pretend that they did.

NC: And all without any consideration of impacts on its female staff.

NC: Unless you want more from me on Debique, those are my submissions.

J: Shall we adjourn for a break so you can read it?

SC: I don't think the R has much to say on Debique, so if C does we could look at written for Monday?

J: SC do you want to make any formal response now to NC subs?

SC: No

J: We will take a short break so NC can decide what / whether re Debique.

SC: Do we want to diarise remedy hearing now?

J: We might be looking at August ... SC: Parties might reach agreement of course.

J: I will check our diaries during the break. We will break for 10 minutes.

NC: Can you remind me ref for Debique?

J [does so]

[BREAK]

@threadreaderapp please unroll