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On Monday, a Dundee employment tribunal ruled a narrow win for Sandie Peggie, the nurse who complained about sharing a changing room with a transgender doctor. But the lengthy judgment also takes on the pivotal question that has been challenging employers, lawyers and campaign groups since April – does a supreme court judgment mean that transgender people must now be excluded from same-sex facilities that align with their chosen gender? Does it amount to a bathroom ban or not?
The supreme court ruled earlier this year that the legal definition of a woman is based on biological sex. Interim advice released by the Equality and Human Rights Commission soon after the judgment in effect banned trans people from using facilities according to their lived gender, and its official guidance is expected to closely reflect that advice.
But the Peggie ruling concluded that the supreme court judgment did not make it inherently unlawful for a trans female, who is biologically male under the Equalities Act, to be given permission to use a female changing room at work. And a week earlier, another employment tribunal reached a similar conclusion, ruling in favour of the trans-inclusive toilets policy at aerospace firm Leonardo UK’s office in Edinburgh.
Equalities law experts are quick to point out that both these rulings are first-instance cases, so they do not set a binding precedent. Maria Kelly, who brought the Leonardo action, is appealing and on Thursday Peggie will set out her next steps at a press conference.
As is typical of this highly contested territory, immediate reactions diverge sharply: Sex Matters, the gender-critical campaign group that assisted Peggie at the start of her case, condemned the rulings as fundamentally misunderstanding the law. Stonewall’s Simon Blake argued they made clear that a blanket ban on all trans women from women’s toilets and changing rooms “will not necessarily hold up in court.”.
Trans support groups say the rulings offer “a small glimmer of hope that the tide of exclusion after the supreme court decision might be turning”, but acknowledge this doesn’t counter the broader effect of relentless litigation.
Writing for Guardian Opinion earlier this week, Jess O’Thomson of the Good Law Project argued that recent decisions by Girlguiding and the Women’s Institute to exclude trans women were the result of “lobbying and legal threats” from groups “pressuring organisations on the basis that the case is closed, and exclusion is now legally required – when that is far from the case”.
“Ultimately, we’re going to need a higher court to make some rulings regarding toilets and changing rooms, because they seem to be the big clash issue. For the people at the centre of the case it is more years of stress,” said Audrey Ludwig, equality lawyer and trainer who believes the supreme court “essentially confirmed what the law should have been since 2010 when the Equality Act was passed”.
But it is not unusual, says equalities specialist Melanie Field, to see “a flurry of litigation seeking to firm up what these things mean in practice” when new provisions are introduced or there’s a significant clarification as happened with the supreme court.
“Much of equality law is drawn in terms of broad principles,” says Field, who played a key role in drafting the Equality Act and has previously argued the supreme court’s ruling contradicted the act’s original intentions. “So it’s not unusual for cases to arise and the courts to put more flesh on the bones of those broad principles and how they apply in different situations.”
Nonetheless, Field says it is “encouraging” to see tribunals take “a balanced and nuanced approach that is very dependent on the individual circumstances”.
And where does that leave women like Kelly or Peggie who don’t want to use a trans-inclusive facility? “The menstruation issue really hasn’t been adequately addressed,” says Ludwig. On the night of the confrontation between Peggie and her trans colleague Beth Upton, the nurse explained in evidence that she had a heavy period and went to change her clothes, fearing she had bled through her scrubs.
“The different female and male experience of undressing and toileting goes to the heart of why we have separate female and male changing rooms and toilets in the first place. To understand what constitutes harassment, what privacy and dignity mean in practice, you have to understand why women might not want to get undressed in front of [biological] males they don’t know.”
Field says the tribunal recognised Peggie’s gender-critical belief “was one that she was entitled to hold and she shouldn’t be discriminated against for holding it, but there are boundaries on how beliefs should be expressed in the workplace”. In practice, said the judgment, this meant speaking to her manager about her concerns, and changing shift patterns, not confronting Upton herself.
But the ruling was also clear about the responsibilities of employers – it set out how ineptly NHS Fife handled Peggie’s concerns, which were “brushed off’ when earlier intervention could have prevented the row escalating.
Many businesses are still waiting for the final guidance from the EHRC before making definitive changes, and firms that moved early to exclude trans people show no sign of backtracking. Ludwig says she is seeing more and more organisations recognising the need for “legally defensible policies, not just blanket declarations that they’re going to ignore the ruling”.
The Co-op, one major business that has stated it intends to remain trans-inclusive, welcomed the recent rulings “which help clarify what does – and importantly what does not – constitute harassment in this space” and hopes it will inform the forthcoming EHRC guidance.
“The general lesson for employees is to exercise some tolerance towards each other, and for employers to remain scrupulously impartial between employees when disputes arise,” says Georgina Calvert-Lee, an employment and equality barrister at Bellevue Law.
But the ruling leaves employers to carry out “a balancing act”, she adds, “in which they weigh up various factors in order to decide what is a fair approach.
“Some of these factors are easy enough for employers to ascertain: the facilities options available in the physical space, whether any complaints have been made or opinions expressed by staff. But others are more problematic: the extent to which the trans person has changed physiological attributes of sex; how the trans person appears to others. This balancing act itself risks creating a minefield for the employer, which will have to be trodden very carefully.”
