If you can’t say sex, how can you say sexual harassment?
An employment tribunal in Leeds has handed down judgment in a case involving catering staff at a Sheffield NHS Hospital Trust.
A female employee reported that a male colleague had asked her to go into a private room and then had quipped about removing his underwear. Another reported having seen the same male colleague naked from the waist down in the women’s changing rooms.
When a manager asked the male employee about this, he not only denied it but brought sexual harassment and discrimination claims against the hospital trust, and against the investigating manager and the female employee personally.
The tribunal found for the male employee on the discrimination claim, concluding:
“The Claimant was asked personal and embarrassing questions in a relatively formal work meeting in front of a colleague. That is detrimental.”
If you don’t know the full story, that short summary will seem like an account of an incomprehensible reversal of victim and offender. The missing piece of the jigsaw is of course that the male employee (“V”) identifies as a woman, and the discrimination found by the tribunal was on the basis of gender reassignment.
This judgment demonstrates how confusion about the legal meanings of “man” and “woman”, reality-denying EDI policies and fear of “misgendering” combine to destroy protection against sexual harassment and sex discrimination.
What happened?
The claimant, a law graduate, applied for a job as a catering assistant at the Sheffield Hospital Trust’s Central Production Unit in January 2020 after a long period of poor mental health and unemployment. Although the job had been advertised as a full-time post, V insisted on working only two or three days a week and the Trust agreed.
Before V started work, management sent a note to all staff informing them that V would be using the female communal changing rooms, and there were to be no questions or comments. This was followed up with a second note about “celebrating diversity”, which warned that “the Trust would take decisive action where people were subjected to discrimination, and encouraged staff to report any disrespectful or discriminatory behaviour they experienced or witnessed”. The Trust’s Head of Equality, Diversity and Inclusion then delivered training to every member of catering staff on trans inclusion.
When some female staff raised concerns about the changing room, they were told that there was no evidence of transgender women being a threat or causing any issues in the workplace, and that there needed to be a balance of rights and respect for someone who wanted to live her life completely as a woman.
V started work on 13th July 2020. On 28th July 2020, V arrived at work crying and shaking because of “hate crime” outside of work. On the same day, V claimed to have overheard two female staff in the women’s changing room saying:
Voice one: (“middle aged, posh, not holding back and opinionated”) I am sick to death of this bloke with a dick pretending to be a woman, who doesn’t even dress like a girl and has facial hair, that thing may rape me and we can drive it out of the department and maybe find a suitable leper colony for it.
Voice two: (“younger, softly spoken, quite posh, arrogant, but young”) I agree but we need to do something but what can we do when management are sucking up to that thing.
Voice one: We will find a way.
The Trust accepted V’s account, so the tribunal was not called upon to decide whether or not this conversation had taken place.
On 11th August 2020, during an investigation of the changing-room incident of 28th July, V reported having found a note saying “Get out you tranny freak” posted into the claimant’s locker in the ladies’ changing room on the same day. V had not previously reported the note, which V claimed to have destroyed. Again, the Trust accepted this as true.
At 3pm, some hours after reporting the destroyed note, V produced a new note: “GET OUT TRANNY” written on a sanitary-disposal bag in capital letters, which V claimed to have just found in V’s locker. Once again, the Trust did not challenge V’s report, so the Tribunal was not called upon to make a factual finding about it.
In June 2021, there was a conversation between V and Mrs Townsend, a colleague who had been kind to the claimant, giving make-up tips and discussing personal issues. V asked for a word in private. They went to the “disposable room”. V complained of not feeling well, and being hot and sweaty. Mrs Townsend suggested taking a break, having a cold drink and going back to work. At that point Mrs Townsend said V told her that “she [V] had taken off her underwear” and mimed a hand-wringing motion suggesting dripping knickers. Mrs Townsend finished the conversation and then recounted it to the shift manager, Mrs Hawkshaw. Mrs Hawkshaw expressed surprise, but they did not discuss it further. Mrs Townsend also made a note of the conversation and added exclamation marks.
On 24th June another female employee told Catering Manager Liz Hawkshaw that a colleague had seen the Claimant in the changing room “naked from the waist down”. Mrs Hawkshaw took a statement from her.
The next day there was a meeting with V to address various workplace conduct issues. Mrs Hawkshaw did not directly ask about the incident in which V had been seen naked from the waist down in the women’s changing room, but asked general questions about removing underwear at work. Those questions were the subject of the Tribunal’s finding of discrimination.
Getting sex wrong
V’s conduct in undressing in a communal women’s changing room so that V was naked from the waist down was an extraordinary violation of workplace norms, and of the boundaries of V’s female colleagues. But V was not directly challenged or disciplined for this behaviour; instead Mrs Hawkshaw awkwardly asked V general questions about removing underwear at work.
The reason for Mrs Hawkshaw’s awkwardness is obvious. V had been given officially sanctioned access to the women’s changing rooms and showers. It is normal to remove your underwear to use a shower. It is not normal to allow men to remove their underwear in women’s changing rooms (or even to be there). But managers well above Mrs Hawkshaw’s pay-grade had made the decision that V would use this space; and V’s female colleagues had been trained and warned that to express discomfort would be regarded as discrimination, which could have disciplinary consequences.
The protected characteristic of gender reassignment (identifying as trans) does not change or erase a person’s sex. But nowhere in the judgment is this basic and important fact acknowledged. The word “male” is not used once to describe the Claimant.
Once you describe V as male, the defence against the discrimination claim becomes clear: would it be normal to question a male employee without the protected characteristic of gender reassignment who acted as V had acted? Yes. Then it is not gender-reassignment discrimination. But that legally conventional defence, using the concepts employed by the Equality Act itself, has been declared to be transphobic “misgendering”. The Hospital Trust is a Stonewall Diversity Champion.
So the Trust tried to defend the case without transgressing the new norms that Stonewall had imposed on it. And the tribunal (which is guided by the Equal Treatment Benchbook, also heavily influenced by the new sex-denialist orthodoxy) didn’t notice.
The female employees who had been trained and warned to deny reality in order to be inclusive and keep their jobs did as they had been told, and if they felt fear, shock or concern for their own dignity or safety, they did not admit it. Even so, two women were personally accused of sexual harassment for merely reporting what had happened. So they must have been at pains to say they saw nothing sexual in any of this.
If they had wanted to say that they or other female staff felt sexually harassed by V, or discriminated against by their employer’s policies, there were no acceptable words they could use. To say anything would have been to risk being branded a transphobe, and in breach of their employer’s “PROUD values”.
But these women’s compliance was not enough. The tribunal held that in even asking questions about V’s behaviour they had discriminated against V for being a “trans woman”, not a “cis woman”. So they may be branded transphobes anyway. More workplace re-education is doubtless on its way.
This should be appealed
This judgment should be appealed.
The tribunal got it legally wrong by using a female comparator for a male in a case of gender-reassignment discrimination. The correct comparator is another man (See Green v Secretary of State for Justice 2013).
Although it is only a first-instance judgment and not precedent-setting, it is likely to be used as an example to pursuade employers and service providers that they must tell staff that they cannot challenge any man in women’s spaces, even a half-naked man in a communal changing room, for fear of discriminating.
If the Hospital Trust won’t appeal it, one or more of the women who were included in the claim could. We know there would be support. The Equality and Human Rights Commission could back them or could take over the case to demonstrate to employers the important point about comparators, and to defend the right of women to object to exposure and voyeurism, and to be protected from sexual harassment.