Nurses penalised for trans complaint, says lawyer

NHS bosses "penalised" female nurses complaining about a transgender woman using their changing room, an employment tribunal has been told.

Eight nurses are challenging a policy which allows the single-sex room at Darlington Memorial Hospital to be used by Rose Henderson, a biological male who identifies as a woman.

In closing submissions, the nurses' barrister said they had suffered indirect discrimination, harassment and victimisation due to County Durham and Darlington NHS Trust's Transitioning In The Workplace policy.

The trust said the nurses had "demonised" Rose and the policy conformed with guidance and laws at the time.

The tribunal in Newcastle has heard Rose, an operating department practitioner, had used the changing room since 2019 before complaints were first made by female nurses from the day surgery unit (DSU) in August 2023.

The trust's policy allowed a person to use the single-sex space that conformed with their gender identity, and anyone of that sex who objected could change elsewhere.

Some 26 nurses signed a letter complaining of Rose's use of and conduct within the changing room, with Rose telling the tribunal the allegations, which included staring at women getting undressed, were "false".

In his closing submission to the tribunal, the nurses' barrister Niazi Fetto KC said the policy was "unjustifiably treated as sacrosanct" by managers and "prescribed the disadvantageous treatment of biological females".

He said the claimants' complaints about the "harmful effects" were "shunned and ignored" before the nurses were "penalised and buried" in an "oppressive and ineffectual investigation process" carried out by the trust.

Mr Fetto said the policy allowed people access to single-sex spaces "based on self-declared gender identity alone" and there was no consultation with staff about its implementation.

The trust was prioritising the right of trans people over the women's "right not to have to change in front of a member of the opposite sex", Mr Fetto said.

The trust converted a storage room adjoining a meeting area into a changing room for those women who did not want to share the female-only space with Rose, but that was "wholly inadequate and unsafe", Mr Fetto said.

He said there was "no right in law" for a person with the "protected characteristic of gender reassignment to use a single-sex changing room corresponding with their adopted gender".

Mr Fetto also said the words "men" and "women" referred to in regulations were based on biological sex, as confirmed by the UK Supreme Court earlier this year.

He said multiple women had complained of Rose's conduct in the changing room and it "defies belief" that every claimant was "mistaken, lying or making it up", adding there was a "high level of corroboration" from "diverse sources".

The trust's response was "determinedly not to grapple with the substance" of the complaints while at the same time "trivialising them and stigmatising those who raised them", Mr Fetto said.

Simon Cheetham KC, for the trust, said the nurses' "central issue" was Rose using the changing room which meant they had "chosen to interpret" anything Rose or the trust did "in a negative way" and through a "negative prism".

"Their single-minded pursuit of this issue has clouded their judgement," Mr Cheetham said, adding Rose's "very presence was seen as provocative".

He also said the nurses' decision to speak to the media was "unattractive" and they had made repeated allegations without "cogent evidence" and disclosures about Rose's private life, which had led to Rose being publicly cast as a "highly predatory character".

Mr Cheetham said the nurses' treatment of Rose had been "unkind and unjustified", with their allegations about conduct "exaggerated".

The nurses had unnecessarily "demonised" Rose and were fighting a "public campaign" about policy and the "trust's treatment of them as a group of women", Mr Cheetham said.

He said staff were only given access to single-sex spaces if they had "declared they were living their life fully in that gender", which was a "higher threshold" than the nurses claimed.

Mr Cheetham said the policy also "accorded with relevant legislation and guidance at the time".

He said the trust had some 8,000 employees and had to balance the "competing" rights of those with the "protected characteristics" of biological sex and gender reassignment.

Mr Cheetham said the "reality" the trust faced at the time was that there were various sets of guidance that were "not consistent" with each other.

The tribunal judges will make their judgement on a future date but said it was unlikely to be reached before Christmas.