A win for reality: responding to the Darlington Nurses judgment

Tim Dieppe comments on the landmark Darlington Nurses judgment last week

The Darlington Nurses received their vindication in a 134-page judgment handed down last week.

The Employment Tribunal ruled that the NHS Trust violated the dignity of the female nurses by allowing a biological man to use the female changing room.

This is a victory for common sense and reality. Obviously, women should not have to undress in front of a man. Somehow, this became less obvious to the NHS and so this case went to court.

Harassment claims dismissed

Whether a man should be allowed to use the female changing room was always the most important part of the case. There were also claims of harassment by the trans nurse Rose Henderson which were dismissed. In dismissing them, the panel found reasons to not accept several testimonies of nurses experiencing harassment. This appears manifestly unjust to me, but it does not detract from the vitally significant win on the policy of allowing a man into the female changing room. I will not discuss the harassment claims further in what follows.

Lack of common sense

Right up until the day before the hearing, I expected the NHS to back out of the case and come to a settlement with the nurses. I couldn’t see how they could possibly expect to win. The Supreme Court had ruled in the For Women Scotland case last year that the definition of “sex” in law is biological. That judgment specifically referenced single-sex facilities like changing rooms as requiring a biological interpretation of “sex”. How could the NHS argue, then, that these women should have to put up with a biological man in their changing room?

One could wonder why they ever thought that it made sense to allow a man to use the women’s changing room in the first place! Such is the prevailing nonsense of our age. Only when the Trust realised that this story was likely get into the court of public opinion did one manager see sense, writing in an email:

“This strikes me as entirely self-inflicted politically correct nonsense which will end up in the tabloids. If the individual is not respectful of his/her/their female colleagues then I think we do need to take management action as opposed to asking the majority of the female staff to make alternative changing arrangements which I believe is the advice Tracey and Andrea (sic) have given based upon our current policies.” §168

This is a rare example of common sense being expressed by NHS management. Sadly, it was not acted upon until it was too late.

The key facts of the case

The judgment takes dozens of pages to establish the facts of the case. Let me summarise the key points:

1. The trust employs some 8,500 staff, around 80% of which are female. §16
2. The uniform policy requires nurses to arrive at work in non-work clothes and change into uniform on arrival and change again before leaving. §47
3. The female changing room involved is used by some 300 females. §36
4. Rose Henderson is a biological male who identifies as female and has the protected characteristic of gender reassignment. §5 He is therefore considered trans female.
5. The Trust’s Transitioning in the Workplace policy said that: “The Trust’s recognition of a transgender person’s identity begins the moment a person informs us they are Trans or intends to transition.” §57
6. There is no requirement in the policy that a trans identifying person be undergoing any medical intervention or to have a gender recognition certificate. §55
7. The policy also states that a transgender employee can use “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.”62 Although this was the policy, it was never actually applied. Rose made no such declaration and was never asked to make such a declaration. §177
8. It then states that: “If others do not wish to share the gender specific facilities, they should use alternative facilities.”62
9. Rose Henderson was the only trans woman using the female changing room. §43
10. The nurses were never consulted or informed about a trans woman using the female changing room. §277
11. In summer 2023 several nurses became aware that Rose Henderson was using the female changing room. §42 Some of these nurses then raised concerns. §65
12. No-one in management or HR ever discussed with Rose the appropriateness of using the female changing room. It was just accepted. §38
13. Even after concerns were raised by nurses about Rose’s use of the female changing room, there was no conversation with Rose. Management believed that even having the conversation could amount to discrimination against Rose. §82, §89, §90
14. The formal response to the nurses was to tell them that they had to accept that a trans woman was using the female changing room because of NHS inclusiveness. §94
15. In March 2024, 26 nurses signed a letter complaining about Rose’s presence in the female changing rooms and noting that Rose had made no secret of wanting to have a baby with his female partner. §124 He is therefore a sexually active male getting changed in a female changing space.
16. At a meeting in April 2024, the signatories of the letter were told that they “had to be educated, broaden their mindset and be inclusive.” 146
17. In May 2024, there was another meeting with management, but there had still been no substantive response from management to concerns that were first raised in July 2023. §164
18. The judgment castigates the NHS Trust for prioritising the rights of one trans nurse over the rights of 300 female nurses to use a female-only changing space. §169
19. Only when the trust knew that the story was going to the press did they finally speak to Rose about the issue for the first time. §171
20. The case was reported by the Mail on Sunday on 26 May 2024. §49
21. Rather than finding alternative changing facilities for Rose, the Trust then sought to find alternative changing facilities for the nurses! The space provided was inadequate and did not comply with fire regulations. §184, §187
22. One of the nurses asked:
    “Why do we have to move and not Rose? Surely its easier and more practical to move 1 person and not a full ward of staff.”185
23. Only in July 2025, after the For Women Scotland Supreme Court judgment, did the NHS Trust change its policy and find alternative changing room facilities for Rose so that the nurses could return to using the female changing room without Rose there. §256
24. An expert witness cited evidence that: “Women are far more likely than men to be uncomfortable undressing in front of people outside their immediate intimate circles of family and friendship groups.” §265

The 1992 Regulations

Once these facts are established, the legal arguments come into play.

The 1992 Regulations specify that where someone is required to change at work, suitable facilities should be provided, and this includes separate facilities for men and women. §309 The judgment concludes that: “from the moment it permitted Rose to use the female changing room, the Trust was in breach of the 1992 Regulations.” §373

Following the For Women Scotland judgment, it is clear that “men and women” means biological men and biological women. §430. In any case, the 1992 Regulations preceded the Equality Act so the words used by parliament could not have meant anything other than biological sex. §431

The Equality Act 2010

With regard to the Equality Act 2010, the judgment concludes: “There is nothing in the Act that we could see (or that we were taken to) that confers on a transgender employee the right to use the changing facilities that accords with their declared or affirmed gender.” §374

The judgment does not accept that there would have been any unlawful breach of Rose’s human rights in excluding Rose from the female changing room and providing alternative changing facilities. §379

Excluding Rose from the female changing room not discriminatory

The Trust should have asked, or insisted, that Rose use temporary facilities, rather than prioritising Rose’s rights over the rights of 300 female nurses. §434 Excluding Rose from the female changing room would not have been discriminatory:

“Further, excluding Rose from the female changing rooms would not have amounted to direct discrimination on the grounds of gender reassignment. It would not be on the basis of gender reassignment. If anything, it might be said to be on grounds of sex. However, Rose would be treated no less favourably than a woman who would also similarly be excluded from the male changing room.” §441

A win for reality

This is a landmark judgment for common sense and reality. Women should not have to change in front of a man. It is extraordinary that we needed to go to court to show this, but there we are. Once the law starts to depart from reality, all sorts of crazy actions and ideas follow.

The reality is that we are created male and female. These biological categories are not social constructs; they are creational constructs. The creator made us this way. No amount of medical or legal manipulation can change this.

Only once we allowed people to change their gender in law, did we create the possibility of a man seeking to use female changing rooms, amongst other things. It remains the case in law that you can get a Gender Recognition Certificate (GRC) to certify in law that you are now your acquired gender. This means that the law will endorse a lie. Once you have a GRC, you can get your birth certificate changed, so legally falsifying history. Even without a GRC, you can get your driving license, your passport, and your medical records to falsify your gender. All this is state sponsored lying.

Such an obvious contradiction of creational reality was never likely to last very long. The inconsistencies and injustices it creates are unsustainable. Allowing rapists into female hospital wards or into female prisons is patently absurd, immoral, and dangerous. Nicola Sturgeon’s attempt to justify this caused her downfall. Punishing nurse Jennifer Melle for referring to a convicted male paedophile as “Mister” is obviously unconscionable. Giving children puberty blockers is directly abusive. Allowing those suffering with gender dysphoria to believe that they can change their gender is damaging and harmful. State sponsored lying helps no-one, and harms many.

The tide is turning

We have been campaigning against transgender ideology for many years now. I sense the tide is finally turning. The law is starting to conform more to reality. The For Women Scotland judgment was a significant step in this direction. The Darlington Nurses judgment makes concrete the implications. There will still be injustices, however, as long as the law endorses the lie that you can change your gender. Ultimately, the Gender Recognition Act will need to be repealed in order to properly protect women and put a stop to legal lying.

For now, we can celebrate this win. This case should mark the end of cases about changing rooms in the workplace. If it wasn’t already obvious, following the For Women Scotland judgment, it is all too obvious now. Men cannot be allowed into female spaces. Full stop. Any workplace that allows biological men into female spaces is breaking the law. Workplace policies need to change right now to reflect this. The rights of women to privacy and dignity have been upheld. It is a victory for common sense and reality. Let’s hope many more such victories will follow.