Despite the Supreme Court’s ruling in For Women Scotland that “sex” in the Equality Act means biological sex, Bridget Phillipson claims the law is already clear and no new EHRC guidance is needed. The Darlington Nurses’ case and Jennifer Melle’s treatment demonstrate that without authoritative guidance, unlawful policies persist and women continue to be harmed. Roger Kiska, Legal Counsel to the Christian Legal Centre, comments
On 11 February, the Women and Equalities Minister, Bridget Phillipson, met with Jennifer Melle, a nurse, supported by the Christian Legal Centre, who had been disciplined by her NHS employer after referring to a biological male transgender patient by male pronouns in a clinical setting. The patient was a convicted offender, including for sexual offences against children. Although the remark was not intended to cause offence, the patient, having overheard it, subsequently subjected Ms Melle to racial abuse and made physical threats against her. The disciplinary action taken against Ms Melle was later rescinded, and she returned to work. During the meeting, Phillipson stated that no new guidance from the EHRC on single-sex spaces was necessary because the law was already clear. Over the weekend, she repeated to the BBC and Sky News that the Supreme Court’s judgment in For Women Scotland Ltd v The Scottish Ministers was “crystal clear,” and that employers need not wait for long-delayed guidance before implementing the ruling.
The repeated assertion that no new guidance is required because “the law is already clear” amounts, at best, to a selective reading of the position. While the For Women Scotland judgment, which defined “sex” in the Equality Act as biological sex, may have clarified the statutory meaning of the language used in the Act, clarity in a courtroom does not automatically produce certainty in workplaces. Employers are not operating in the realm of abstract legal interpretation; they must manage risk, internal policy, and governance obligations. In the absence of authoritative guidance, many organisations are choosing to delay substantive policy change despite the ruling, while awaiting formal direction. Maintaining that no further clarification is necessary also avoids the political optics of appearing to retreat or concede ground on so-called trans rights. Presenting this state of affairs as settled does not demonstrate leadership; it reflects a calculated decision to allow uncertainty to persist while projecting resolve. It also gives some level of cover to progressive actors, like the NHS, to continue showing preference to transgender employees or service users over biological females.
Serving as Legal Counsel for the Christian Legal Centre for nearly a decade, I have witnessed the rise and slow decline of the transgender movement and worked on the frontlines in challenging nefarious transgender affirming policies, especially where children are involved. At CLC, we continue to receive new enquiries on a semi-regular basis which deal with badly worded trans policies that negatively impact people on the basis of sex and/or religion and belief. There is nothing ‘crystal clear’ about not actioning the EHRC policy as a matter of urgency.
For Women Scotland
In For Women Scotland Ltd v The Scottish Ministers, the UK Supreme Court considered whether the definition of “sex” in the Equality Act 2010 included individuals with a Gender Recognition Certificate or referred strictly to biological sex. The Court concluded that, for the purposes of the Act, “sex” means biological sex. This interpretation was central to the statutory framework governing sex-based protections, including provisions relating to single-sex services and occupational requirements. The judgment clarified that while the Gender Recognition Act 2004 confers legal recognition of acquired gender in many contexts, it does not displace the biological definition of sex embedded within the Equality Act where that meaning is necessary to preserve the coherence of sex-based rights and exemptions.
Relevant guidance under the Equality Act, particularly that issued by the Equality and Human Rights Commission (EHRC), should unequivocally recognise that single-sex spaces and services are lawful where they fall within the Act’s specific exceptions. Schedule 3 of the Equality Act permits service providers to restrict access on the basis of sex where doing so is a proportionate means of achieving a legitimate aim. For example, in contexts involving privacy, dignity, safeguarding, or the prevention of trauma. This framework applies to settings such as hospital wards, changing rooms, refuges, and certain counselling services. The preservation and confident application of these exemptions is essential to maintaining meaningful sex-based protections in practice, and full implementation of the Supreme Court’s judgment is vital to ensuring that single-sex spaces remain lawful, workable, and legally robust.
The Darlington Nurses
The Christian Legal Centre supported the Darlington nurses’ case, and January’s Employment Tribunal judgment builds on the legal principles reaffirmed in For Women Scotland by applying those same sex-based protections to a real-world workplace context, examining how an NHS trust’s policies impacted the dignity, privacy and legal rights of female staff.
In Bethany Hutchison & Others v County Durham and Darlington NHS Foundation Trust, seven female nurses at Darlington Memorial Hospital brought claims against their employer after being required to share communal changing facilities with a colleague who was biologically male but identified as female. The nurses objected on the basis that they had to undress and change their uniforms in the presence of a biological male, and that their concerns were dismissed or inadequately addressed by management. The Tribunal heard evidence over multiple days, including testimony about the emotional impact and perceived intrusion on privacy when using shared facilities without suitable alternatives.
The Tribunal concluded that by requiring the nurses to share changing room space with a biological male member of staff who identified as transgender, and by failing to take their concerns seriously or provide adequate alternatives, the Trust engaged in unwanted conduct related to sex and gender reassignment that violated the nurses’ dignity and created a hostile, humiliating and degrading environment. This conduct was found to constitute harassment under the Equality Act 2010 and also, separately, indirect sex discrimination because the policy placed female staff at a particular disadvantage.
The judgment explicitly recognised that women are more likely than men to experience feelings of fear, distress, humiliation or loss of dignity when compelled to undress in front of a biological male in an intimate setting such as a changing room. Evidence and expert considerations supported the position that the impact on female staff was not equivalent to what would be experienced by male staff, reinforcing the legal justification for sex-specific privacy protections.
Why the Darlington Nurses matter
The Tribunal applied the statutory interpretation principles from For Women Scotland by adopting the Supreme Court’s definition of “sex” as biological sex and using it to assess whether the Trust’s policies complied with existing legal protections. The ruling illustrates how the Supreme Court’s clarification in For Women Scotland should guide workplace practice: policies that disregard biological sex in settings involving privacy and dignity can lead to unlawful discrimination and harassment. In doing so, the judgment underscores the practical necessity of implementing sex-based exemptions and reinforces the importance of authoritative guidance that reflects both the For Women Scotland framework and the legislative intent behind single-sex space protections.
Employment Judge Sweeney made clear that requiring female staff to undress in the presence of a biological male in a communal hospital changing room was sufficient to amount to harassment related to sex and to constitute indirect sex discrimination. The finding did not depend on any improper intent or additional misconduct; it flowed from the objective reality of compelled exposure in an intimate setting and the impact that such an arrangement had on female staff. Although Schedule 3 of the Equality Act is drafted in permissive terms, allowing service providers and employers to offer single-sex spaces, the judgment demonstrates that in contexts involving privacy and bodily dignity, a failure to rely upon and apply that exemption can itself result in unlawful discrimination. That degree of judicial clarity ought to be reflected in EHRC guidance, making plain that the provision of single-sex facilities in intimate environments is not simply an optional policy preference but, in some circumstances, a legal necessity.
Why guidance is urgently needed
Government guidance is not immune from lack of legal clarity or indeed perpetuating legally incorrect policy. The current Civil Service Gender Identity and Intersex Model Policy, for example, still in force across many government departments, has been publicly criticised as incompatible with the law as clarified by the UK Supreme Court. That policy, drawn up in 2019, permits individuals to use single-sex facilities based on mere subjective self-identification of gender and treats refusal to use someone’s preferred pronouns as potential misconduct, even in inherently sex-segregated spaces such as toilets and changing rooms. It is clear that such public sector policies directly conflict with the For Women Scotland judgment, which is now the law of the land.
Across the public and private sectors, employers continue to rely on outdated policies and the absence of authoritative guidance as a reason not to update internal arrangements for single-sex spaces. In the absence of clear, official direction from the Equality and Human Rights Commission, organisations are defaulting to vague or permissive formulations that pre-date the Supreme Court’s clarification, allowing biological males identifying as women to access female-only spaces without robust legal basis. The result is continued ambiguity and risk for employers and staff alike, underscoring why comprehensive, precise guidance is still urgently needed to ensure the law is properly understood and applied in workplaces.
Conclusion
In the Darlington nurses’ case, policies that treated gender self-identification as determinative of access to single-sex intimate spaces were found to be unlawful because they resulted in harassment and indirect sex discrimination against female staff. The judgment rejected the proposition that personal identification alone could justify compulsory sharing of changing facilities in settings involving undressing and bodily privacy, reaffirming that biological sex remains legally determinative when assessing the proportionality of single-sex service arrangements under the Equality Act.
Despite the Supreme Court’s clear interpretation in For Women Scotland Ltd that “sex” in the Equality Act refers to biological sex, a gap remains between judicial interpretation and operational policy across parts of the public sector. Only last week, the Equality and Human Rights Commission stated that 19 organisations were identified during its review of single-sex space policies as having guidance that risked misrepresenting the law by implying an automatic right of access based on gender self-identification. Those policies have since been withdrawn or amended. While there is no public confirmation that the National Health Service was among the specific organisations formally identified, concerns must be raised more broadly about the persistence of legacy guidance within parts of the health sector. This continuing uncertainty reinforces the fact that clear, authoritative guidance is still necessary to ensure that workplace and service-level policies are aligned with the law as clarified by the courts. It also raises questions as to why Bridget Phillipson appears to be delaying the implementation of guidance that has already undergone consultation and drafting, particularly given the clarity provided by the ET in the Darlington nurses’ case. The circumstances surrounding Jennifer Melle have also been widely criticised because of the outrageousness of her being disciplined for using biologically accurate pronouns in a clinical setting, despite the patient being a convicted sexual offender and racist. Jennifer Melle’s case is a stark illustration of the risks faced by staff when institutional policies prioritise self-identification over safety, dignity, and legality, reinforcing why authoritative national guidance should be issued without further delay. It is time for the government to step up and protect the dignity and safety of our women.
