Trans staff experience more harassment and even physical violence compared to cis staff. If a member of staff is outed as trans because of a workplace policy and is harassed or potentially attacked, this would be discrimination.

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Organisations have data protection duties under GDPR. The EHRC has confirmed that gender reassignment is special category data. Policies advising trans and intersex staff to use facilities of the gender assigned at birth will lead to breaches of this data.

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Defaulting to excluding the trans member of staff shows a hierarchy and contradicts evidence from employment tribunals, which stress that situations must be assessed on a case-by-case basis considering evidence, context and proportionality (eg Peggie vs Fife para 606-607, Kelly v Leonardo para 347)

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For an organisation to justify having a discriminatory policy it would need to show this is a proportionate means to a legitimate aim. Has there been an exercise carried out to show that the policy is proportionate? What complaints have the Trust had around trans individuals using facilities?

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The EHRC and court cases have been clear that there is no hierarchy of protected characteristics. New policy wording may present a hierarchy if facilities being used according to sex assigned at birth is presented as mandatory but gender-neutral facilities are offered optionally.

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