Case update
Further guidance on single-sex facilities in the workplace
This case, LS v NHS England, centred around workplace policies that address access to single-sex facilities by transgender staff.
The Claimant was a Muslim woman suffering from PTSD resulting from male sexual violence. She alleged that the NHS’s policies, which permitted trans people to use single-sex facilities, amounted to indirect discrimination under s.19 Equality Act 2010 (EqA) and harassment under s.26 EqA.
The Tribunal ultimately upheld her indirect discrimination claim on grounds of sex, while rejecting the equivalent claims based on religion and disability. It also upheld harassment claims relating both to the NHS’s facilities policy and its wider Trans Equality Policy and Procedure (TEP).
This article provides an overview of the case as well as practical considerations for employers.
Background
The NHS’s policies
Indirect discrimination can arise when there is a provision, criterion or practice (PCP), such as a work policy, that puts those who share a certain protected characteristic (e.g. race, sex or disability) at a disadvantage and the employer is unable to justify it (i.e. show that it is a proportionate means of achieving a legitimate aim).
Two PCPs were at the centre of the dispute:
- PCP1 allowed trans women to access female-only facilities.
- PCP2 permitted trans staff to access single-sex facilities of the opposite sex.
These policies were reflected in both the NHS’s internal procedures and in associated workplace communications and training materials.
Claimant’s protected characteristics
The Claimant possessed several protected characteristics relevant to the proceedings:
- She was a woman (sex is one protected characteristic);
- A Muslim (i.e. the protected characteristic of religion or belief);
- Disabled within the meaning of the EqA because of PTSD associated with previous sexual violence by men; and
- She also held gender critical beliefs (i.e. that sex is biological and distinct from gender identity). Such beliefs can amount to a “philosophical belief”, which is also a protected characteristic.
The NHS accepted that the PCPs put the Claimant at a disadvantage both as an individual and as part of a group who had the protected characteristic of being a woman.
Triggering events
An October 2022 internal email announcing a colleague’s transition referenced the NHS’s Trans Equality Procedure and highlighted that trans staff may use facilities aligned with their gender identity.
The Claimant read the policy, attended a trans awareness session, and subsequently raised informal concerns followed by a formal grievance. Her core objection was sharing intimate space with biological males. She argued that the policies undermined her privacy, dignity and sense of safety, particularly given her religious beliefs and the impact of her PTSD. She subsequently reduced her attendance at the office and avoided using female facilities at work altogether.
The Employment Tribunal’s decision
Indirect discrimination on grounds of sex
The NHS accepted that it had applied PCPs which were disadvantageous to the Claimant individually and disadvantageous to women, Muslim women and women with PTSD from male sexual violence as broader groups. Therefore, the key issue was whether the NHS could show the PCP had objective justification.
The NHS highlighted that it was trying to balance competing interests, respect gender identity and comply with equality legislation. The Tribunal accepted these were legitimate objectives. The NHS also stressed that it had followed guidance from bodies such as Stonewall, UNISON and other trade unions.
However, the Tribunal stated that reliance on contemporaneous guidance cannot justify an incorrect interpretation of the law. Employers must seek their own legal advice and ensure that they are complying with statutory obligations.
With that in mind, the Tribunal pointed out that, while trans people are protected from discrimination on grounds of gender reassignment (another protected characteristic), that protection does not automatically confer a positive entitlement to access opposite-sex facilities under the EqA or The Workplace (Health, Safety and Welfare) Regulations 1992 (the Workplace Regulations). The NHS’s framing of “competing rights” was therefore flawed as it failed to identify conflicting legal interests.
The Tribunal also highlighted a lack of evidence of a structured balancing exercise or meaningful consideration of the impact on women, including Muslim women, or those with PTSD. It emphasised that providing gender-neutral facilities for trans people to use would have been a less discriminatory measure, especially given the low number of trans workers, and noted that such alternatives were not considered until the grievance had begun.
Accordingly, the PCPs were disproportionate and the claim for indirect discrimination on grounds of sex succeeded. Her claims on the basis of religion (specifically being a female Muslim) and disability (being a female with PTSD from male sexual violence) failed as such ‘combined’ protected characteristics are not recognised under the EqA (but she did, in any event, succeed on the grounds of sex/being a female as a standalone characteristic).
Harassment in relation to the NHS’s facilities policy
Under s.26 EqA, harassment occurs where unwanted conduct related to a protected characteristic has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment (the Proscribed Environment). In assessing if the conduct is harassment, the Tribunal will consider the subjective perception of the individual, whether it was objectively reasonable for the conduct to have that effect (in other words, was the effect on the victim only the result of their hypersensitivity), and the broader circumstances of the case.
The NHS accepted that the policy amounted to unwanted conduct for the Claimant and that it had the effect of creating the Proscribed Environment. Therefore, the only dispute was whether it was objectively reasonable for the NHS’s facilities policy to have the effect of harassing the Claimant.
Central to the Tribunal’s conclusion was the ‘For Women Scotland’ case, as interpreted in the context of the Workplace Regulations in the High Court case of R on the application of the Good Law Project and others v EHRC [2026] EWHC 279 (Admin). Since that Supreme Court ruling, the legal position is now that the term “women” (for the purposes of the EqA) refers to biological sex. Further, since the subsequent High Court case, permitting trans women (biological males) to use female facilities means an employer may (in effect) be regarded as no longer providing single-sex facilities under the Workplace Regulations. Therefore, the Tribunal considered it was reasonable that the Claimant found her workplace hostile as a result of her sex-based concerns of safety, privacy and dignity, as well as her gender critical beliefs and PTSD. Further, it accepted that the Claimant’s avoidance of female facilities and reduced office attendance were genuine behavioural consequences of the policy.
The reasonableness of the Claimant’s position was further supported by:
- the NHS’s delay in responding to concerns and resolving the grievance;
- the absence of adequate mitigation at the building in question, particularly in relation to shower privacy;
- the inadequacy of requiring the Claimant to default to gender neutral facilities;
- the fact that alternative, less intrusive, measures could have been implemented earlier.
Any suggestion of hypersensitivity was also rejected. The Tribunal perceived that the Claimant’s reaction was objectively grounded in her circumstances, especially in the context of her PTSD.
Accordingly, the Claimant’s claim for harassment on grounds of sex and gender critical beliefs succeeded. This mirrors the conclusions in a similar case we covered in our January 2026 Employment Update
Harassment in relation to the NHS’s Trans Equality Policy and Procedure (TEP)
The Claimant’s final argument was that the wording of the TEP had the purpose of violating her dignity and the effect of creating the Proscribed Environment in relation to her gender critical beliefs.
As above, the NHS accepted the TEP amounted to unwanted conduct and had the effect of creating the Proscribed Environment for the Claimant. The dispute in relation to this issue was whether the TEP had the purpose of creating the Proscribed Environment or, if that was not the case, whether it was objectively reasonable for it to have that effect.
The Tribunal was satisfied that the TEP had been designed to respect the gender identity of trans colleagues and promote inclusion in the workplace rather than to violate anyone’s dignity. Therefore, the purpose argument failed.
However, having reviewed the TEP in the round, the Tribunal found that it was reasonable for the TEP’s wording to have had the effect of violating the Claimant’s dignity or creating the Proscribed Environment. The Tribunal cited:
- the wording of the TEP;
- the online training modules;
- the NHS’s handling of the Claimant’s concerns.
Taken together, these elements created what the Tribunal viewed as an ongoing institutional environment rather than a single isolated incident. As above, the Tribunal also rejected arguments of hypersensitivity.
Therefore, the claim of harassment by effect on grounds of gender critical beliefs also succeeded.
Conclusion and takeaways
Disclaimer
This update should not be treated as legal advice and only provides general information on the issues discussed.
