A legal battle over a transgender NHS employee’s use of the female changing room has exposed the complexities in reconciling the rights of transgender individuals and cisgender women in single-sex spaces. The case, which took over two and a half years to resolve, has left employers struggling to navigate the evolving legal landscape.
The dispute began in the summer of 2023 when nurse Bethany Hutchison was “shocked” to see Rose Henderson, a transgender woman and operating theatre practitioner, using the female changing room at Darlington Memorial Hospital. Several other nurses voiced their discomfort, with one saying Rose’s presence had triggered flashbacks to childhood abuse.
After a series of complaints, eight nurses took legal action against their employer, the County Durham and Darlington NHS Foundation Trust. In April 2024, the trust’s “Transitioning in the Workplace” policy, which had allowed transgender employees to use the facilities matching their gender identity, was found to be unlawful by an employment tribunal.
The tribunal concluded that the trust had indirectly discriminated against the cisgender nurses, prioritising “the perceived rights of Rose” over the dignity and privacy of the female staff. While the panel found no improper behaviour on Rose’s part, it held the trust accountable for failing to offer a suitable, dignified alternative.
The case has highlighted the tensions between the rights of transgender individuals and the concerns of some cisgender women regarding single-sex spaces. Employers and service providers are now grappling with how to navigate this delicate issue, as they await further guidance from the Equality and Human Rights Commission.
Two similar cases in Scotland have offered slightly different interpretations of the law. In one, a tribunal initially accepted a transgender doctor’s right to use the female changing room, but later ruled the trust should have revoked that permission when a nurse complained. In another, a tribunal dismissed a woman’s claims of discrimination and harassment after her employer, an aerospace company, allowed transgender women to use the female toilets.
With at least two of these tribunal judgements facing appeal, the legal landscape remains uncertain. Employers are left trying to balance the needs and rights of all their staff, while minimising the emotional toll and financial costs of these disputes.
As the government considers the Equality and Human Rights Commission’s updated guidance, the NHS and other organisations will be hoping for clarity on how to create inclusive workplaces that respect the dignity and privacy of everyone. The outcome of this debate will have far-reaching implications for employers and employees across the UK.
