Trans nurse had support of immediate colleagues, employment tribunal hears

A transgender nurse at the centre of a legal challenge over using a female changing room at work was “liked and supported” by immediate colleagues, an employment tribunal has heard.

Seven nurses are bringing a claim against County Durham and Darlington NHS Foundation Trust after Rose Henderson, who was born male but who identifies as a woman, was allowed to use the women’s changing facilities at Darlington Memorial Hospital.

The Day Surgery Unit staff claim that Rose Henderson repeatedly asked one of them why she was not getting changed, was still intending to father a child and would stand in the changing rooms in boxer shorts.

They are bringing a claim for sexual harassment, discrimination, victimisation and breaches of the right to a private life under article eight of the European Convention on Human Rights.

Jillian Bailey, who oversees the trust’s equality and diversity policies and is workforce experience manager, said in her witness statement to the tribunal in Newcastle that she first became aware of concerns about Rose Henderson’s use of the changing rooms in September 2023.

Mrs Bailey said she had a meeting with one of the theatre managers, Tracy Wainwright, and theatre matron, Linda Watson, who said there had not been any issues previously.

She said: “They explained to me that Rose had recently stopped taking hormone therapy and had made it quite public with some people that she had decided to have a baby with her partner, and that Rose was sounding and looking more masculine as a result of having stopped taking the hormones, and that this had led to some staff complaining that they felt uncomfortable.

“They went into some detail about how Rose dressed, and that sometimes she would attend for work with visible stubble and I recall it being mentioned that it appeared she did not shave for several days sometimes and didn’t try to hide this with make-up or anything.

“They said that in all other ways Rose Henderson was presenting as a woman, and mentioned her name, outer clothing, pronouns, hairstyle.

“I recall them saying, ‘Rose was still Rose’.

“I was of the impression that Rose had transitioned years and years ago and was living her life as a woman.

“I appreciate that every person that is trans may not live their life in the same way and that someone can be protected under the Equality Act for gender reassignment without any medical intervention, so if she was no longer taking hormones, this did not automatically mean for me that she was no longer trans as she was still presenting herself as a woman.”

Mrs Bailey remembered that it was mentioned that, as Rose Henderson was wearing “male boxer shorts”, it was “more obvious than previously that Rose Henderson was trans”.

She added: “I understood from this that there was a change from how Rose Henderson had previously presented, where I understood that she had ‘passed’ more as female.

“However, nothing else had changed, Rose was still Rose and for all other purposes was living and attending work as a woman, continued to wear female outer clothing, hairstyle, was using her name and pronouns etc.”

Mrs Bailey was not told of any complaints about Rose Henderson’s alleged conduct in the changing rooms, she said.

“The focus of this conversation was all about this individual’s presence and the appearance of a male in the changing room,” she said in her statement.

She added: “In the course of this meeting, we talked at length about other options, and I put forward a number of potential things to consider.

“However, Ms Watson and Ms Wainwright explained that their view was that Rose had a right to use the female changing rooms and they said that they respected Rose’s choice to be female and to choose to use the female facilities.

“They said that Rose was a good member of staff, and they had not received any formal complaints about Rose.

“I recall them saying that Rose was liked and supported by her immediate team but some that didn’t work with her so closely were questioning her being in the changing rooms.”

Mrs Bailey said she made recommendations, including alterations to the changing rooms, erecting cubicles or dividers, or staggering shifts.

She said: “I asked if the staff not comfortable about Rose could use other changing facilities and they said they would look into this as an option.”

Mrs Bailey also said she asked the colleagues to talk to Rose Henderson about changing elsewhere.

She said: “However, where I raised options and things which could be considered, I came to understand from the two managers that there was a lot of support for Rose Henderson.

“They explained to me in response to my suggestions that they didn’t want to speak to Rose Henderson about this issue, and they didn’t think it was right that anyone should speak to her about this, or that she should be spoken to by anyone else about this.

“They both (…) said that they believed that she should be supported and should not be treated differently.

“They appeared to feel strongly that because Rose Henderson had been in the Trust for years, it would be wrong and discriminatory if she was asked to change elsewhere.”

After the meeting, Mrs Bailey said she conducted further research.

She said: “All the guidance I found advised that employers should support staff who were transitioning or who had transitioned to use whichever facilities they wished in accordance with their affirmed gender.”

She advised managers to go “back to the people who had complained and explaining that we understood that they may feel uncomfortable with the situation, but the Trust respects Rose’s right to identify as female and her choice to use the facilities that match her gender”.

Ms Wainwright, a band seven employee who has worked for the NHS for 40 years and been a theatre manager for seven years, said she had used the same changing room as Rose Henderson and had never witnessed any inappropriate behaviour.

In her witness statement, she said: “I have never seen Rose Henderson do anything in the changing room which I felt wasn’t appropriate.

“I’ve never seen her in only boxer shorts.

“I have seen Rose get changed occasionally in a toilet or shower cubicle.

“I have never known Rose to spend longer than necessary in the changing room, she doesn’t spend a long time in there at all as she’s usually running just on time.

“I have never seen Rose staring or looking around at other colleagues.

“In fact, she is typically quite quiet and keeps herself to herself in the changing room.”

The tribunal continues.