6 hours agoShareSaveAlison HoltSocial affairs editorShareSaveBBC”A moment of truth.” That was the verdict of a group of nurses in Darlington after a legal judgement that said NHS bosses had violated their dignity by allowing a trans woman colleague to use the female changing room.Yet in the highly contentious world of gender and trans politics, “a moment of truth” for one group can lead to anger, distress and push-back from another.The NHS is the UK’s largest employer. Last year 1.5 million people worked in services run by NHS England alone. So, when anything goes awry, it is not surprising that people watch closely to see what they can learn.For the NHS as well as employers and their staff more generally, the question is: what next?PA WireIn the summer of 2023, Bethany Hutchison was leaving the female staff changing room on the first floor of Darlington Memorial Hospital, as another staff member, Rose Henderson, was walking in.Hutchison, a nurse in the day surgery unit, told the tribunal she was “shocked” because the person passing her “looked so masculine”. Rose, an operating theatre practitioner, is a trans woman, a biological male who identifies as a woman. Rose’s first name was used by the tribunal along with they/them pronouns.The tribunal was told that in the changing room Rose was “seen wearing boxer shorts” and “bearing stubble”. Other nurses voiced their discomfort. One said that Rose’s presence and conduct in the changing room had triggered flashbacks to childhood abuse. Another nurse said that she “had initially been uneasy about raising any concern as she was concerned she may be seen as bigoted or transphobic”.The nurses first complained to County Durham and Darlington NHS Trust in the summer of 2023. In April 2024, 26 nurses wrote voicing their concerns. In the end, eight nurses took legal action against their bosses, although one later paused her case because of illness.Criticisms of Rose were dismissed. The panel said they “found no improper behaviour on the part of Rose personally”. The BBC has asked if Rose wishes to comment but has had no response. During the tribunal hearings, Rose said they believed they had a right to use the female-only changing room. Last week, the employment tribunal judgement concluded that the NHS Trust indirectly discriminated against the women, when it allowed Rose to use the female changing room.The tribunal concluded “real accountability” for Rose’s presence in the changing room was down to NHS managers who had given Rose permission to be there and not offered a suitable, dignified alternative.It rejected claims that the Trust had victimised the nurses but said they had been harassed by them. It found their complaints had not been taken seriously, which created a “hostile, humiliating and degrading environment”.It was also said to have prioritised “the perceived rights of Rose” over those of the nurses.The NHS Trust has said it will take its time to consider the judgement.In a press conference after the judgement, one of the nurses said they felt they had been “gaslighted” by NHS managers.But perhaps the real question now is, how did a dispute in a changing room reach this point – taking two and a half years to resolve? And what lessons does it offer to the NHS and other employers?Employer policies vs court rulingsAn employment tribunal does not set a legal precedent – it is only binding on those directly involved. However, it is an indicator of how laws and regulations governing employers and services are being interpreted in practice.Perhaps the key finding in the 134 pages of legal argument in the Darlington case is that the County Durham and Darlington NHS Foundation Trust misunderstood equalities law.The Trust’s Transitioning in the Workplace (TIW) policy said that a person, who is recognised as transgender from the moment they inform the trust they are trans or intend to transition, is “legally allowed to use any toilet facility they prefer”, and if “others do not wish to share the gender specific facilities, they should use alternative facilities”.The tribunal goes as far as to say the policy was unlawful.At the time, it was a policy mirrored in many other NHS Trusts.PA MediaThe policy was withdrawn last year, shortly after the Supreme Court ruled that in the 2010 Equality Act the definition of a woman is based on biological sex. The court ruling clarified that if a trans woman – a biological male identifying as a woman – is given access to a single-sex space for females, then it could be argued that other biological men should be able to use it. Effectively the space ceases to be single-sex.It also emphasised that both women and transgender people have protections under equality law.As the Supreme Court is the highest court in the land, the Darlington tribunal used the judgement as the legal lens through which it interpreted the Equality Act and workplace regulations.Dr Michael Foran, associate professor of law at the University of Oxford and an ex …
