Two judgments have recently been handed down by the employment tribunal in Scotland, and one in England, concerning access to single-sex spaces. The Supreme Court’s judgment in For Women Scotland v The Scottish Ministers ("the FWS judgment"), which confirmed that the word "woman" in the Equality Act 2010 means biological sex, played a central role in the cases. The judgments are all first-instance decisions and therefore do not set legal precedent, although both Scottish cases are expected to be appealed, and it remains to be seen what will happen with the English case.
Peggie v Fife Health Board and Dr Beth Upton
The higher-profile of the three cases was Peggie v Fife Health Board and Dr B Upton. The claimant argued that allowing a transgender doctor to use the women’s changing rooms amounted to discrimination and harassment in relation to her sex and her gender-critical beliefs. The issue was ultimately resolved when rotas were adjusted so that the claimant and Dr Upton did not have to use the changing facilities at the same time.
Although many of the claimant’s arguments were unsuccessful, she persuaded the tribunal that certain actions taken by NHS Fife had the effect of harassing her in relation to her sex. None of her claims against Dr Upton succeeded.
The successful claims related to the way in which the claimant’s complaints were handled internally, rather than to NHS Fife’s substantive approach to the use of changing facilities by transgender staff. In particular, NHS Fife’s failure to implement interim arrangements while longer-term rota changes were being made was found to amount to harassment. However, the decision to allow a trans woman to use the women’s changing rooms before the complaint was raised, and again once the rota changes were in place, did not amount to discrimination related to sex or to the claimant’s gender-critical beliefs.
Kelly v Leonardo UK Limited
In Kelly v Leonardo UK Limited, the employer’s position was that access to toilet facilities was determined by asserted gender rather than biological sex. Following an unsuccessful grievance and appeal, the claimant pursued a number of claims before the tribunal. She argued that the toilet access policy constituted harassment related to sex, direct and indirect sex discrimination, and a breach of her Article 8 ECHR right to respect for private life.
The tribunal dismissed all of her claims. Although, in light of the FWS judgment, this outcome may appear surprising, it is important to recognise that the Supreme Court did not consider employment or workplace facilities. In Kelly, the tribunal examined the Workplace (Health, Safety and Welfare) Regulations 1992 ("the WHS Regulations"), which govern the provision of "sanitary conveniences" in the workplace and were not considered by the Supreme Court.
The tribunal accepted that the terms "men" and "women" in the WHS Regulations should be interpreted by reference to biological sex. However, it concluded that employers could comply with the WHS Regulations without being required to adopt either a strictly biological or a gender-certified approach when determining access to toilets.
The claimant’s direct sex discrimination claim failed because Leonardo's policy applied equally to men and women. Her indirect discrimination claim failed because she could not demonstrate that she, or women generally, were placed at a particular disadvantage by the policy. In any event, the tribunal found that the policy was objectively justified by Leonardo’s legitimate aim of promoting inclusivity in the workplace.
The harassment claim also failed, as the tribunal concluded that the application of the policy did not violate the claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment. The claimant continued to use the shared facilities despite the availability of single-occupancy alternatives. The tribunal found that her sense of objection arose not because of her sex, but because the policy conflicted with her gender-critical beliefs.
Hutchison and others v County Durham and Darlington NHS Foundation Trust
The judgment of the Newcastle Employment Tribunal in Hutchison & Others v County Durham and Darlington NHS Foundation Trust was handed down in mid-January. The tribunal took into consideration the FWS Judgment but appears to have reached different conclusions as to the effect of its application than those reached by the Scottish tribunals, particularly in relation to the WHS Regulations.
The claims arose from the Trust enabling transitioning employees to use changing rooms aligning to their self-declared gender identity. A number of biologically female staff raised concerns about this to the Trust.
When they subsequently raised employment tribunal claims they were partially successful. Some claims of indirect sex discrimination and harassment were upheld. The indirect discrimination claims that succeeded were based on the Trust applying two provisions, criteria or practices ("PCPs") the application of which put female staff at a disadvantage when compared to male staff, and the PCPs could not be justified. The PCPs in question were (1) giving staff access to single sex changing rooms on the basis of self-declared gender identity; and (2) prioritising the perceived rights of transgender employees to use those facilities over the rights of other employees to have the use of single sex facilities. The successful harassment claims related to the requirement to share a changing room with a biological male trans woman and not taking seriously and declining to address the claimant's concerns around the policy allowing trans women access to the female changing room. Other harassment claims and a victimisation claim were not successful.
Commentary
There remains a notable absence of clear and authoritative guidance for employers in this area. The EHRC’s interim update following the FWS judgment, which was amended to reference the WHS Regulations, was subsequently withdrawn and is now the subject of a judicial review heard in November 2025, with judgment awaited. The ongoing delay in publication of the EHRC Services Code has further contributed to uncertainty, and the EHRC Employment Code also awaits updating.
From a legal risk perspective, employers may face challenges from multiple directions. For example, if an employer prevents a trans woman from using female-only facilities, she may bring claims for indirect discrimination or harassment related to gender reassignment, potentially alongside a human rights claim. Conversely, permitting access may expose employers to claims from biological women alleging indirect discrimination or harassment based on privacy and dignity concerns. Constructive dismissal claims from affected employees are also a potential risk.
In this context, it is essential that employers continue to seek legal advice tailored to their specific circumstances when navigating issues relating to single-sex spaces and competing protected rights.
