And speaking of seeking support brings me to the curious case of Kelly v Leonardo UK Limited 2025 and her tribunal bid to stop trans colleagues using the workplace toilet that matched their gender identity.

Ms Kelly, a biological woman, works three days a week at the company’s Edinburgh site. In the workplace there were several multiple occupancy toilets badged as male or female, each containing individual lockable cubicles and a shared wash basin area. There were also several single occupancy toilets and two toilets on each floor badged as “accessible”. In June 2023 the company implemented a policy that staff could use the toilets that corresponded to their gender identity. The tribunal heard that the women’s toilets were used by three trans women employees.

In June 2024 Ms Kelly raised a formal grievance about this policy, claiming that women have a greater need for single-sex spaces due to menopause and menstruation, and that the company’s policy prioritised “those subscribing to gender self identification theory” above those who hold gender critical beliefs. This grievance was dismissed, as was her appeal.

Ms Kelly then brought a series of claims in the Employment Tribunal. She claimed the Workplace (Health, Safety and Welfare) Regulations 1992 – which require employers to provide suitable and sufficient toilet facilities – must be interpreted to protect her human right to bodily privacy, and that following the Supreme Court’s For Women Scotland (FWS) decision the requirement to provide separate facilities for men and women must be given a biological interpretation. She also argued that allowing trans women to access female toilets amounted to harassment, direct discrimination based on sex, and indirect discrimination based on sex.

The tribunal dismissed all of her claims. The ET reiterated that the FWS decision determined the meaning of sex under the Equality Act 2010, and that this meaning could not automatically be applied to the 1992 Regulations (which FWS had not considered). ET reasoned that a biological interpretation of the Regulations is unworkable because it is not possible to know the biological sex of another facility user. People may be able to infer sex by how someone presents but this would end up allowing access to trans women who “pass” and prohibit access who don’t “pass”. However, what the 1992 Regulations actually require is for employers to provide sanitary facilities and for access to those facilities to be limited to what is reasonably practicable for the purpose of ensuring health, safety and welfare (including bodily privacy) and moral propriety between the sexes. In this case the company met their duty.

Regarding her harassment claim, the ET accepted that the company’s policy was unwanted conduct. However, the ET reasoned that this conduct did not have the effect of violating Ms Kelly’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. Relevant to this conclusion was the fact that even though Ms Kelly knew that trans women used the female toilets, she continued to use them. The policy did not cause her to change her habits. The ET did not rule out the possibility that such a policy could amount to harassment in different circumstances, but dismissed Ms Kelly’s harassment claim in this case.

Ms Kelly also argued that the policy indirectly discriminated against women, arguing the policy made women more fearful to use the toilet, women are at greater risk of violence and sexual assault from men, and the policy had a greater impact on their privacy. The ET dismissed this claim as well, reasoning that, in these circumstances, there was no evidence that the application of the toilet access policy meant women who worked at Leonardo were at a greater risk of violence or sexual assault in the toilets in comparison with men. Relevant to this finding was the fact that Ms Kelly herself did not change her habits following the implementation of the policy, there was no evidence that she or any other woman had experienced any such incident at the workplace, and such incidents were unlikely given the strict vetting requirements for working at Leonardo.

The ET went on to state that even if the policy did place women at a disadvantage, it could be justified as a proportionate means of achieving a legitimate aim, mainly treating trans employees inclusively and with dignity according to the gender with which they identified.

This is only a first instance decision and so is not binding on future tribunals. Employers can expect more litigation on this area following the For Women Scotland decision. However, employers should not assume that a biological policy or self-identification policy will automatically be lawful. It will always depend on the circumstances and employers should always be able to justify their policy.