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Trans-inclusive toilet access policy was not sex discrimination finds the Tribunal

12 Dec 2025 | 10 minute read

Introduction

In late November 2025, Edinburgh Employment Tribunal handed down judgment in B M Kelly v Leonardo UK Ltd. This case concerned a challenge to an employer’s approach to toilet access in the workplace and its interaction with sex-based rights, gender identity and philosophical beliefs. The claimant, B M Kelly (“MK”), alleged that Leonardo UK Limited’s ("L Ltd") policy permitting employees to use toilets aligned with their gender identity amounted to harassment related to sex, direct sex discrimination and indirect sex discrimination under the Equality Act 2010. The Tribunal dismissed all claims, providing a detailed analysis of the various rights and obligations that employers must balance when navigating this highly polarised issue.

As a first instance, non-binding decision, employers aren't expected to change their policies as a direct result of this judgment. However, the reasoning of the Tribunal (and the fact it comes after the seismic For Women Scotland decision) nevertheless offers useful insight.

We outlined the factual background of the case, the Tribunal's decision and practical implications for employers.

Factual background

MK has worked for L Ltd since 2007 and was promoted in September 2024 to People and Capability Lead, a senior role supporting around 300 engineers. She is based at L Ltd's Edinburgh site, which employs approximately 2,800 staff, of whom around 20% are women and 0.5% are transgender. Until mid-2023, toilet facilities were provided in separate male and female blocks, supplemented by accessible single-occupancy toilets.

MK’s concerns began informally in March 2023, when she asked her line manager whether the company had a policy on toilet access. Her manager did not know and received no response from his own enquiries. This informal query was followed by her first formal enquiry on 13 June 2023, when MK emailed the Vice President of HR for Edinburgh asking (i) whether L Ltd had a policy on access to toilets; and (ii) whether she could assume that the female toilets were accessible by sex rather than gender.

In June 2023, following MK’s enquiry, L Ltd confirmed that access would be determined by gender identity rather than biological sex. This position was later formalised through internal communications and grievance correspondence with MK, though no written policy was published to staff. MK strongly objected, asserting that the policy compromised privacy and dignity for women and conflicted with health and safety at work regulations. MK also holds gender-critical beliefs - that sex is real, binary and immutable - which is capable of being a protected belief under the Equality Act (as confirmed by the Court of Appeal in Higgs).

Following a prolonged exchange with HR and Diversity and Inclusion leadership, MK lodged a formal grievance in June 2024. Her grievance comprised the following complaints:

L Ltd's policy permitting access to toilets based on gender identity rather than biological sex was unlawful and discriminatory. This policy, combined with the absence of single-sex facilities, compromised women’s privacy, dignity and safety, particularly in relation to menstruation, menopause, breastfeeding and religious practices.

MK alleged harassment and discrimination related to sex and her gender-critical belief, criticised the lack of consultation and equality impact assessment, and noted that certain questions of hers had gone unanswered for over a year.

The grievance was heard by senior HR leadership and dismissed in August 2024, although L Ltd agreed to introduce additional single-occupancy toilets. MK appealed, but the appeal was rejected in October 2024. The grievance and appeal were not upheld because L Ltd maintained that its approach was lawful, aligned with external legal advice and was consistent with inclusion principles. In the grievance outcome, the company stated that any individual living in the gender with which they identify is entitled to use facilities of that gender and refusing access would be unlawful. It also noted that adequate single-occupancy toilets were available and more were being added. On appeal, L Ltd reiterated that defining toilet use by self-identified gender was lawful and proportionate, supported by two independent legal opinions. It concluded that female staff were not placed at a material disadvantage, given the availability of private facilities and that changing the policy to biological sex would likely amount to discrimination against transgender employees. The appeal decision also stressed that the company had acted within its processes and that the policy pursued legitimate aims of inclusion and dignity.

MK issued her claim in September 2024. Meanwhile, L Ltd began implementing changes to increase privacy options across its UK estate.

The Tribunal's decision

The Tribunal examined the Workplace (Health, Safety and Welfare) Regulations 1992 (the "1992 Regulations"), which require “suitable and sufficient sanitary conveniences” and separate rooms for men and women unless each convenience is in a lockable room. It also considered the Equality Act 2010, which prohibits harassment, direct and indirect discrimination at work, and protects sex and gender reassignment as protected characteristics.

The Supreme Court’s decision in For Women Scotland v Scottish Ministers, confirming that “sex” under the Equality Act means biological sex, was noted but did not alter the Tribunal’s approach to the 1992 Regulations. As we pointed out earlier this year, the Tribunal acknowledged that the biological sex interpretation in For Women Scotland was related specifically to the Equality Act and does not automatically govern the 1992 Regulations, which were central to MK's claims about toilet provision.

The Tribunal confirmed that L Ltd complied with the 1992 Regulations by providing enough suitable toilets including separate male and female blocks and single-occupancy options. While the policy did not govern access by biological sex, the physical estate met statutory health and safety requirements. This observation of compliance with the 1992 Regulations was relevant to, but not determinative of, MK's employment discrimination claims.

Harassment related to sex

The Tribunal accepted that the policy was unwanted by MK and related to sex because it determined access to facilities by gender rather than sex. However, it found that the policy did not have the effect of violating her dignity or creating an intimidating or hostile environment. MK’s objection was rooted in her gender-critical philosophical beliefs rather than in any actual experience of harassment. Her perception of the toilet access policy as “mixed-sex” depended on her ideological belief that gender identity is not real and that trans women are men. Importantly, the Tribunal noted that the policy had no practical effect on her day-to-day use of facilities - she continued using the same toilets, did not report any negative encounters and her grievance focused on ideological disagreement with "gender identity theory" rather than any hostile or degrading environment. The availability of single-occupancy toilets further mitigated any potential impact. The harassment claim was therefore dismissed.

Direct sex discrimination

MK contended that allowing trans women to use female toilets constituted less favourable treatment because of sex. The Tribunal rejected this. MK argued that the correct comparator in this case was a male user of the women’s toilets. However, the Tribunal held that the correct comparator was a man using male toilets that were also accessed by trans men. On that basis, the policy applied equally to men and women. Both sexes were subject to the same rule: employees could use facilities aligned with their gender identity.

The Tribunal considered whether the presence of trans women in female toilets violated women’s privacy more than the presence of trans men in male toilets violated men’s privacy. It concluded that there was no such disparity. Both sets of facilities had lockable cubicles and additional single-occupancy toilets were available throughout the site. The Tribunal found no evidence that MK was treated less favourably because of her sex. As above, her objection stemmed from ideological disagreement rather than any inherent disadvantage. For these reasons, the Tribunal held that the operation of the policy did not amount to direct discrimination.

Indirect sex discrimination

MK alleged that the policy placed women at a particular disadvantage compared to men, citing greater privacy needs and fear of male presence. The Tribunal accepted that the policy was a provision, criterion or practice applied from June 2023 but found no evidence of group disadvantage. While it acknowledged that women’s greater fear of men and privacy needs during menstruation, pregnancy and menopause are matters of common knowledge, it stressed that these effects were not shown to actually operate in this workplace. There were no complaints from other female staff, despite grievance and whistleblowing channels and MK herself did not report fear or safety concerns. The Tribunal also noted the Edinburgh site’s stringent security vetting, which reduced any realistic risk of assault. On privacy, it found that lockable cubicles and additional single-occupancy toilets were adequate and rejected the argument that women’s privacy needs were inherently greater than men’s when using cubicles, noting that men also require privacy for defecation. The Tribunal concluded that MK's assertions were based on personal views rather than evidence of actual disadvantage affecting women as a group.

Turning to individual disadvantage, the Tribunal held that MK’s own use of facilities did not materially change after the policy was introduced. She continued to use the same toilets and did not experience fear or privacy harm; her concerns were ideological rather than practical. Even if disadvantage had been established, the Tribunal concluded that the policy pursued legitimate aims - treating transgender employees lawfully, respecting dignity and fostering inclusion - and was a proportionate means of achieving those aims. Alternatives suggested by MK, such as requiring trans staff to use disabled toilets, were considered inappropriate and inconsistent with inclusion. Accordingly, the Tribunal held that the policy did not put women at a particular disadvantage compared to men. In the alternative, any disadvantage would have been minor and objectively justified. The indirect discrimination claim therefore failed.

The practical difficulties for employers

The judgment explicitly considered the practical difficulties of governing toilet access by biological sex or by possession of a Gender Recognition Certificate ("GRC"). Shortly after the For Women Scotland judgment, I wrote in the Industrial Law Journal, that "the balance of competing rights in practice remains contextual and complex […]" and that the Supreme Court did discuss the practical limitations of a certificated interpretation of sex but "left similar questions and problems with a biological interpretation unanswered and unexplored". In other words, while the judgment was initially seen as providing clarity by many, the essence and nature of governing access to spaces based on biological sex in a workplace raises significant practical questions. The Tribunal in this case thought the same. It concluded that neither a strict biological nor a GRC-based approach may be feasible for day-to-day workplace management and that any duty to control access under health and safety law should be limited to what is reasonably practicable. This does not necessarily mandate either a biological or certificated approach. As noted, we await further appellate judicial consideration on these points (and the updated EHRC Code), but for now many employers are concerned as they attempt to grapple with these very real practical challenges.

Implications for employers

As a first instance decision, this judgment is not binding precedent so future tribunals could reach different conclusions on similar facts. Nevertheless, it is a detailed decision that provides valuable insight into how tribunals are currently approaching issues of sex, gender identity and workplace facilities - an area that remains highly contentious and is firmly on the agenda for employers, HR professionals, lawyers and policy makers. It illustrates the complexity of balancing competing rights and the importance of robust governance when implementing inclusion policies.

What can employers take from the judgment?

The Tribunal criticised the absence of formal communication and noted that staff only became aware of the policy through MK’s efforts. It was clear that L Ltd hadn’t ever really thought about toilet facilities access until MK raised the issue. You should ensure policies are written, accessible and disseminated promptly. It is best not to wait until a problem arises – taking action now helps you to set clear expectations for your employees and minimise the risk that cultural and ideological conflicts will spiral. If you do not already have a clear, formal policy in place, it is advisable to obtain specialist legal advice.

L Ltd’s introduction of single-occupancy toilets was viewed positively and helped mitigate concerns. Only 1 out of 9,500 employees had raised a concern about the impact of the policy despite having multiple channels to do so. The Tribunal noted that any individuals who had specific fears or privacy concerns could use the single-occupancy toilet facilities. As such, even where you are limited on space or layout, you should consider privacy-enhancing options where shared facilities may cause discomfort. This helps all employees who, for whatever reason, may find that they need greater privacy.

The Tribunal noted that equal opportunities training was only provided at induction and not refreshed. Regular training helps staff understand rights and responsibilities, reducing misunderstandings and grievances. Specifically, in this decision, the Tribunal noted MK’s ideological position and considered this to be the source of her objections. Training on promoting tolerance and respect of others in the workplace, irrespective of belief or identities, is more important than ever (which is something we recommended following the judgment in Higgs earlier this year). We offer a suite of training options, including Gender Diversity Training and Managing Conflicting Beliefs in the Workplace Training – reach out to Mollie Gascoigne for further details.

The Tribunal stressed that no protected characteristic “trumps” another. They all carry equal weight. Employers must show they have considered all relevant rights – sex, gender reassignment and religion or belief – and explain how they reached a balanced decision. In this case, the Tribunal endorsed the legitimacy of L Ltd’s aims but did still criticise certain procedural failures. L Ltd had documented its aims of treating transgender employees lawfully and fostering respect and inclusion so employees feel valued and supported. Nevertheless, the Tribunal was surprised and disappointed by the lack of proper consultation with staff and lack of equality impact assessment (best practice but not compulsory for a private sector employer) with a view to considering the impact of the policy on all protected groups. Employers should be able to demonstrate how all protected groups have been considered. Transparency is key: record the reasoning behind the approach and communicate it clearly to staff. This is about the process of balancing rights, not just the outcome.

Even if a policy engages competing rights, employers must show that it is a proportionate means of achieving legitimate aims. The Tribunal found that L Ltd satisfied this test because its policy pursued legitimate aims – respect, dignity and inclusion – and was supported by external legal advice. L Ltd also mitigated potential impact by introducing single-occupancy toilets.

Therefore, employers should document why their chosen approach is reasonably necessary and why less discriminatory alternatives are inappropriate. MK had suggested in her submissions that trans staff should use the accessible toilets. However, the Tribunal considered that if a transgender person would not be considered “disabled” (for example, because they didn’t experience gender dysphoria following a transitioning process), a requirement for them to use accessible facilities may be affected by considerations of illegality and would not fulfil the legitimate aims of L Ltd to treated trans employees inclusively. Employers should therefore clearly record their aims, reasoning on proportionality and consideration of alternatives. While requiring trans employees to use accessible toilets is often proposed, this option must be assessed carefully against legal obligations and the employer’s inclusion objectives.

This case underlines how fact-sensitive these disputes are. The Tribunal’s findings – that MK’s concerns were ideological rather than practical, that she continued using the same toilets and that the site had stringent security and privacy options – were important to its decision making. A different workplace with fewer privacy options or multiple complaints could lead to a different outcome and it is worth repeating that this is only a first instance (non-binding) decision. Employers should assess the specific context and individuals involved before implementing or defending policies. What worked here may not suffice elsewhere. We recommend seeking specialist legal advice to ensure that your policies meet the needs of your business and employees.

Concluding thoughts

This case is part of a growing body of disputes at the intersection of sex, gender identity and workplace rights. Tribunals are being asked to weigh competing protections in highly fact-sensitive contexts and decisions often turn on proportionality and practical impact rather than ideology alone. With societal debate and legal interpretation continuing to evolve, particularly following the Supreme Court’s decision on “sex” in For Women Scotland, employers should expect further claims and scrutiny in this area. Specialist advice, bespoke training, proactive policy design, consultation and documentation will be critical to reducing risk as this remains one of the most dynamic and closely watched areas of employment law.

If you need support in this area, please do get in touch with a member of our team today.