Didlaw can reveal that the Claimant in the above case, heard in Leeds ET for 6 days from 23 March 2026 has been successful in her discrimination claims against NHS England.
The ET upheld the following claims:
- The Claimant’s complaint of indirect discrimination in relation to sex under section 19 Equality Act 2010 in relation to NHS England’s Trans Equality Policy and Trans Equality Procedure which permit trans colleagues to use toilets (and showers) that correspond with their gender identity rather than their biological sex;
- The Claimant’s complaint of harassment related to sex and gender critical beliefs as a result of NHS England’s Trans Equality Policy of permitting trans women to use female only facilities; and;
- The Claimant’s complaint of harassment related to her gender critical beliefs in that the Respondent’s Trans Equality Procedure had the effect of violating her dignity or creating the Proscribed Environment on the grounds of her gender critical beliefs.
The claims:
The Claimant is employed by NHS England, is female, Muslim and has PTSD. She also holds gender critical beliefs. Her claims were pursued relating to these characteristics. In October 2017 NHS England produced documents titled ‘Trans Equality Policy’ and ‘Trans Equality Procedure.’ These documents confirmed that trans colleagues could use the single-sex facilities that corresponded with their gender identity once they reached ‘full time presentation….in the new gender role.’ In October 2022 the Claimant received an email announcing the transition of a colleague and attended a Trans Awareness session in November 2022. The Claimant thereafter raised complaints about the NHS England’s policy of permitting trans staff to use single-sex facilities (both toilets and shower facilities) of their gender identity; and the wording of the procedure.
The Claimant claimed that NHS England indirectly discriminated against women, Muslim women, and women with PTSD (occasioned by male sexual violence) as a result of this policy that permits trans staff to use the facilities of their gender identity within their facilities. It was accepted by NHS England that the Claimant herself, and women (both Muslims and those with PTSD) were subject to a disadvantage as a result of its policy.
The Tribunal upheld the Claimant’s indirect sex discrimination because NHS England failed to show that the policy was a proportionate means of achieving a legitimate aim (i.e. that it was objectively justified) because:
- there is no express legal right for a trans person to use the single-sex facilities of their gender identity under the EqA 2010 or the Workplace (Health, Safety & Welfare) Regulations 1992;
- despite the aims of respecting the gender identity of its staff, NHS England’s witnesses accepted that there were practical issues faced by female staff caused by allowing trans staff to use the single-sex facilities of their gender identity when adopting the policy;
- NHS England should have considered an alternative measure (such as gender neutral facilities) to permitting trans staff using the single-sex facilities of their assumed identity. This would have had a lesser impact on female staff who significantly outnumber the number of trans staff employed by Respondent.
NHS England accepted that the policy and procedure amounted to unwanted conduct but not that it had the effect of violating the Claimant’s dignity or creating a hostile/intimidating environment.
The Tribunal held that it was reasonable for NHS England’s policy to have the effect of harassment on the Claimant in relation to both her sex and gender critical belief. In addition, it was reasonable for NHS England’s procedure to have the effect of harassment on the Claimant in relation to both her sex and gender critical belief. The Tribunal distinguished that it was not the purpose of the policy/procedure to harass the Claimant, but it held that it did have that effect.
We are delighted to have achieved this outcome for our client the Claimant, who is anonymised for the purposes of these proceedings. Didlaw instructed the indomitable Naomi Cunningham of Outer Temple whose advocacy in this case (and others in this domain) was outstanding. We were also supported by the knowledge and wisdom of Professor Jo Phoenix whose expert evidence was of huge value and significance in this case.
Didlaw has been a huge advocate for the protection of single sex spaces for women and has been involved in other seminal cases that involve the protection of gender critical beliefs and upholding women’s rights to safe spaces. Our journey continues.
We hope this case goes a significant way to supporting the Supreme Court Judgment in For Women Scotland and applies further pressure on the government to publish the EHRC guidance (which has been inexplicably and unjustifiably delayed) and to force all employers to comply with the law on biological sex and the provision of facilities and services.
We also wish to thank the Claimant for her strength, courage and fortitude in bringing this case, challenging her public sector employer (whilst remaining employed) and achieving this outcome of both her behalf and that of all biological women.
If you have any questions on the facts of this case or the law relating to protected beliefs, or sex discrimination please contact us in the first instance by email at info@didlaw.com.
This press release was written by Elizabeth McGlone, Managing Partner of didlaw and solicitor for the Claimant.
