Darlington nurses penalised for trans complaint, says lawyer

NHS bosses “disciplined” nurses who complained about a transgender woman using their changing room, an employment tribunal has been told.

Eight nurses are challenging a policy that allows Rose Henderson, a biological man who identifies as a woman, to use a single-sex ward at Darlington Memorial Hospital.

In closing submissions, the nurses' lawyer said they suffered indirect discrimination, harassment and victimization due to Durham and Darlington County NHS Trust's workplace transition policies.

The trust said nurses had “demonized” Rose and that the policy was consistent with guidelines and laws at the time.

Speaking to the BBC afterwards, the nurses said it was “very stressful” but they went to work anyway because the patients were “the most important”.

The Newcastle tribunal heard Rose, a surgical theater practitioner, used the changing room from 2019 until complaints were first made in August 2023 by nurses on the day surgery unit (DSU).

The foundation's policy allowed a person to use a single-sex space corresponding to their gender identity, and anyone of that gender who objected to this could change their seat elsewhere.

About 26 nurses signed a letter complaining about Rose's use and behavior in the locker room. Rose told the tribunal that the allegations, including watching women undress, were “false”..

In his final submission to the tribunal, the nurses' lawyer Niyazi Fetto K.K. stated that managers “unjustifiably view the policy as sacrosanct” and “prescribe unfavorable treatment of biological women.”

He said complainants' complaints of “harmful consequences” were “avoided and ignored” before nurses were “punished and buried” in the trust's “repressive and ineffective investigation process”.

Mr Fetto said the policy only allowed people to access single-sex spaces “on the basis of self-declared gender identity” and there had been no consultation with staff about its implementation.

The foundation prioritized transgender rights over women's rights “not to cross-dress in front of a member of the opposite sex,” Mr. Fetto said.

The trust converted a storage area adjacent to the conference room into a changing room for those women who did not want to share the women's-only space with Rose, but it was “totally inadequate and unsafe”, Mr Fetto said.

He said a person with a “protected gender reassignment characteristic” does not have a “right under law” to use a single-sex changing room corresponding to their adopted gender.

Mr. Fetto also said that the words “men” and “women” mentioned in the rules are based on biological sex because confirmed by the UK Supreme Court earlier this year.

He said several women had complained about Rose's behavior in the locker room and it “beggars belief” that each complainant was “mistaken, lying or making things up”, adding that there was a “high level of corroboration” from “various sources”.

The foundation's response was to “resolutely not deal with the merits” of the complaints, while “simplifying them and stigmatizing those who raised them”, Mr Fetto said.

Simon Cheetham, a spokesman for the trust, said the nurses' “central issue” was Rose's use of the changing room, which meant they “chose to interpret” everything Rose or the trust did “in a negative way” and through a “negative lens”.

“Their single-minded consideration of the matter clouded their judgment,” Mr Cheetham said, adding that “Rose's very presence was perceived as provocative.”

He also said the nurses' decision to speak to the media was “unappealing” and they repeatedly made accusations without “compelling evidence” or revealing information about Rose's private life, leading to Rose being publicly labeled as a “highly predatory character”.

Mr Cheetham said the nurses' treatment of Rose was “unkind and unjustified” and their allegations of behavior were “exaggerated”.

The nurses unnecessarily “demonized” Rose and fought a “public campaign” over the policy and the trust's “treatment of them as a group of women”, Mr Cheetham said.

He said staff were only given access to single-sex facilities if they “declared that they were fully living as their own gender”, which was a “higher threshold” than nurses claimed.

Mr Cheetham said the policy was also “consistent with relevant legislation and guidance at the time”.

He said the trust had around 8,000 staff and had to balance the “competing” rights of those with the “protected characteristics” of biological sex and gender reassignment.

Mr Cheetham said the “reality” the trust faced at the time was that there were different sets of guidance that were “not consistent” with each other.

The tribunal judges will make their decision in the future, but noted it was unlikely to be reached before Christmas.

After the tribunal, nurses Lisa Lockey, Bethany Hutchison and Karen Danson said it had been “very stressful” and “all-consuming” but they hoped the judges would rule in their favour.

Ms Lockie said the nurses had felt “completely ostracized” since making the complaint, adding the trust's policy “just seemed completely unreasonable”.

She said it was “frustrating” waiting for national guidelines to be confirmed, adding: “We are in a bit of a limbo.”

Ms Lockie said they continued to work, which was “uncomfortable” at times, not knowing who was supporting them, but they had to “keep a professional view of everyone” and “do their job”.

She said nurses were there to help patients and they were “the most important.”

Ms Hutchison said she hoped more people would “stand up” against the ideology behind the policy, adding: “It's time for people to raise their heads above the parapet and speak out against this.”

Rose was approached for comment through the NHS trust but did not wish to speak.