It concluded that when this didn’t happen the Trust’s actions amounted to harassment.
Other allegations of discrimination and victimisation were dismissed.
The ruling is being appealed by Sandie Peggie.
Another tribunal in Edinburgh dismissed harassment and discrimination claims brought by a woman named Maria Kelly, an engineer, after Leonardo UK – the aerospace company she worked for – allowed trans women to use female toilets.
The tribunal found that there were alternative toilets Kelly could use and she was not treated unfavourably. The hearing was also told the company had “received legal advice that they had a legal obligation” to allow transgender colleagues to use the facilities of their choice.
Kelly is also planning to appeal.
Dr Michael Foran expects lawyers and employers to be looking closely at all three decisions but believes the two involving the NHS have the clearest impact.
If you look at the bigger legal picture in both the Peggie and Darlington cases, he argues, the NHS policy of allowing trans people to self-identify into single-sex spaces has been found to amount to unlawful harassment of women on the grounds of sex.
He says it would therefore be “foolish” in legal terms for the NHS to continue with that policy.
However, he also argues that the Peggie judgement did not take into account legal limitations on the findings it could make, and the judgement effectively proposed case-by-case decisions.
He says that seemed to suggest a complex test, including whether the trans person passed as being of their lived gender, or whether they had had surgery.
With at least two of these tribunal judgements facing appeal, and other potential cases on the horizon, there is likely to be a long wait for courtroom battles to settle how people should navigate the line between the rights of women and the rights of transgender people in single-sex spaces.
In the meantime, those running businesses or services are trying to read the runes.
“Employers are worried about the impact of the Supreme Court’s judgement regarding their exposure to claims,” says Joanne Moseley, a solicitor with Irwin Mitchell who advises companies and individuals on employment law.
Many of the businesses she deals with have policies which allow staff to use the facilities where they feel most comfortable, and she says, “employees are starting to challenge these and are asking for them to be changed”.
To comply with the law, some already have fully enclosed lockable facilities, but those that do not are looking at other ways to provide gender-neutral spaces in addition to separate-sex facilities and improving signage to make it clear who has a right to access those facilities.