The big 300-ton hinge bearings that allow the Sydney Harbour Bridge’s arch to function came from Darlington in the north of England. And the town was also one end of the first public railway, the Stockton and Darlington railway. But the town is back in the news: Nurses at the Darlington Memorial Hospital have won an employment tribunal case, which found that female nurses had been discriminated against and harassed when they were forced to share a changing room with a transwoman colleague.
Under a ‘Transitioning in the Workplace’ policy, female nurses had been told by the County Durham and Darlington NHS Foundation Trust that if they had an issue with getting changed in front of a man who identifies as a woman, they should find alternative changing facilities.
“By requiring the Claimants to share a changing room with a biological male trans woman… the Respondent engaged in unwanted conduct related to sex and gender reassignment which had the effect of violating the dignity of the Claimants and creating for the Claimants a hostile, humiliating and degrading environment,” the employment tribunal found.
“By not taking seriously and declining to address the Claimants’ concerns of August and September 2023 and of 04 April 2024, regarding that part of the Transition in the Workplace Policy that afforded biological males access to the female changing room, the Respondent engaged in unwanted conduct related to sex and gender reassignment which had the effect of creating for the Claimants a hostile and intimidating environment.”
The nurse’s case was supported by the Christian Institute, which supplies legal aid in similar cases, similar to Australia’s Human Rights Law Alliance.
However, the tribunal also found claims of harassment by the transwoman “were complaints of harassment “insofar as they relate to the conduct of Rose Henderson outside the changing room … are not well founded and are dismissed.”
A key fact in the tribunal’s analysis was a hospital rule that “requires employees to attend work in their non-work clothes and to change into uniforms when they arrive at work and to change out of their uniforms before leaving their place of work, including for the purposes of any breaks … The underlying rationale behind this is, we infer, the infection risk that wearing a uniform outside of the hospital would present. Staff are expected to go straight to a changing room to change into their uniform before going to the ward. They could not just change in any room, again we infer for reasons related to infection risk, but also for reasons of modesty. Only one facility had, in any event been provided for them in which to change.”
The Transitioning in the Workplace Policy state “If a Trans person chooses not to undergo any medical intervention or gain official documentation, they are still entitled to dignity and respect for their chosen gender identity.” Hospital policy also “support[s] a transgender employee’s right to use the toilets and facilities appropriate to their gender from the point at which the individual declares that they are living their life fully in that gender.”
The testimony in the report included discussion that the transwoman described as being male and masculine in appearance, and of nurses preferring to change in shower cubicles. The transwoman was believed by the nurses to be in a “sexually functional relationship with a female partner.” The transwoman testified that they were intending to have a child with their female partner “later in life.”
The tribunal found that managers had suggested that the nurses needed to be “educated, broaden their mindset and be inclusive.”
“This further feedback served only to reinforce the view held by the nurses … that they were not being listened to and that their concerns would go nowhere.
“Lest it be thought that we are in some way critical of the suggestion that employees be provided with equality and diversity training or of the suggestion that staff should seek to broaden their outlook on the treatment of transgender colleagues or of all colleagues from all walks of life, we are not. All good employers will understandably hope and expect that all of their workers are treated with dignity, courtesy and respect. In and of itself, it is a noble aspiration that staff should ‘broaden their mindset’. But this issue of ‘education’ and ‘broadening mindsets’ takes on a particular significance on the facts of and in the context of these cases. One can have a broad mindset on the rights of transgender people whilst at the same time raise legitimate concerns about the effect of having to share a space whilst being exposed in one’s underwear in the presence of someone of the opposite biological sex. Given the circumstances in which it was suggested, the intention to ‘educate’ with a view to broadening mindsets served to highlight to the … nurses in particular that they were not being taken seriously, reinforcing the feeling that they were seen as transphobic or bigoted. If nothing else, it demonstrated a prioritisation of one group over another.”
Further on in the timeline of the case the tribunal notes of a manager, “At no point did she, or anyone else in management or HR seriously consider that the policy of permitting a trans woman to use the female changing rooms might constitute some form of discrimination against female employees.”
The timeline also shows the efforts of Christian Concern in providing legal advice and getting the story into the Mail on Sunday and later on TV.
The practical outcome of the case occurred earlier when the transwoman was found a different roon in which to change.