Publicly funded organizations should not discriminate against female employees. It’s so obvious that it shouldn’t need to be said, but today’s excoriating judgment in an employment tribunal case involving a group of nurses from Darlington shows how necessary it is. The tribunal upheld complaints of indirect sex discrimination and harassment, finding that NHS managers created “a hostile, humiliating and degrading environment” when they required the nurses to share a changing room with “a biological male trans woman”.

The judgment also found that County Durham and Darlington NHS Foundation Trust had behaved unlawfully in failing to address the nurses’ concerns in 2023 and 2024. It follows a partial victory last month in a tribunal case brought against NHS Fife by another nurse, Sandie Peggie, in similar circumstances.

Rulings like these are important for setting a benchmark in cases over trans rights. When the cost of complaining is so high, including being ostracized from the workplace and accused of “transphobia” by colleagues, many female employees will understandably remain silent. Nurses have spoken about the abuse they received, including being told to “broaden their mindset” by hospital managers, even though the tribunals found that they were also victims of indirect discrimination. Health service managers have appeared to interpret silence as consent, when it likely indicates a widespread fear of the consequences of speaking out.

That is why it’s now important for the Government to act. Last June, Health Secretary Wes Streeting expressed support for the Darlington nurses and called on NHS England to resolve the dispute urgently. Two months beforehand, the Supreme Court ruled that biological men do not have a right to access women-only spaces. Prime Minister Keir Starmer “welcomed” the ruling and said that it was now important to draft guidance to help organizations comply with the Court. Streeting should now order an audit of NHS trusts to establish how many others are breaking the law, publish the results, and tell managers to make sure single-sex spaces are exactly that.

It’s important that no more credence is given to this intimidation by trusts. At a time when hospitals are chronically short of cash, the NHS shouldn’t be wasting public money defending unlawful practices. It was revealed last month that NHS Fife has spent over £400,000 defending its employment tribunal against Peggie. While the Darlington nurses’ legal victory is welcome, the fact that NHS workers had to raise funds and go to court to establish their legal right to privacy is scandalous.

It’s also evidence of a problem at the core of the NHS and how it treats gender. Nothing could be more essential than healthcare professionals having a clear understanding of whether someone is a man or a woman. Female patients seeing a male GP are routinely asked whether they would like a chaperone present should they need to undress — a clear recognition that many women feel uncomfortable exposing parts of their body in front of a man. Yet NHS nurses have been expected to strip to their underwear in the presence of biological male colleagues for far too long.

This government has made some positive noises of late, but it has a dreadful record when it comes to upholding women’s rights. Its pusillanimous behavior is exposed every time a court case involving taxpayer-funded organizations, from the NHS and local authorities to the police, finds that women’s rights have been violated. Streeting’s Cabinet colleague, Bridget Phillipson, has allowed this behavior to continue by delaying the presentation of EHRC guidance on single-sex spaces before Parliament. Chancellor Rachel Reeves, meanwhile, has refused to apologize to Rosie Duffield for the way in which she was ostracized from the Labour Party over her views on gender. Let’s see if Streeting himself is any braver.

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Joan Smith is a novelist and columnist. She was previously Chair of the Mayor of London’s Violence Against Women and Girls Board, and is on the advisory group for Sex Matters. Her book Unfortunately, She Was A Nymphomaniac: A New History of Rome’s Imperial Women was published in November 2024.

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