The intersection of gender-critical beliefs (the belief that biological sex is binary, immutable, and distinct from gender identity), and gender reassignment discrimination continues to generate significant case law, presenting fresh challenges for employers across all sectors. Recent tribunal and appellate decisions have brought greater – though not complete – clarity to this contested area. For clients in film, television, and media, where diverse workforces and public-facing talent are the norm, understanding these developments is essential.

Centre stage – Hutchinson v County Durham and Darlington NHS Foundation Trust [2024] EAT 48

The Darlington NHS Foundation Trust case represents a pivotal change in this area of case law. To briefly recap the facts, the Trust operated a policy permitting transitioning employees to use changing rooms aligned with their self-declared gender identity. When a trans woman began using female facilities, Ms Hutchinson and other female employees raised concerns. The Trust declined to amend its policy, prompting discrimination claims. Applying the Supreme Court’s For Women Scotland ruling that “sex” means biological sex, the tribunal found that requiring women to share changing facilities with a biological male trans woman amounted to harassment related to both sex and gender reassignment. The indirect sex discrimination claim also succeeded, as the Trust failed to justify its policy.

The Employment Appeal Tribunal considered whether the employer’s promotion of gender identity ideology in the workplace, including mandatory training and communications perceived as endorsing contested views on gender, amounted to unlawful treatment. The EAT held that tribunals must carefully assess whether workplace policies or communications create an intimidating or hostile environment for those holding gender-critical beliefs applying an objective standard.

The significance of Hutchinson lies in its recognition that employers cannot simply prioritise one protected characteristic over another. The judgment emphasises the need for genuine neutrality and proportionality when managing competing rights in the workplace.

Setting the stage – the recent wider case law framework

The case law surrounding the topic of gender reassignment and associated rights has been often prevalent and polarising in the media and workplaces.

The Supreme Court’s decision in For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16 provided crucial clarification, confirming that “sex” within the Equality Act 2010 refers to biological sex. This ruling has profound implications for how employers approach single-sex spaces, policies, and the balancing of rights between those with gender-critical beliefs and those undergoing gender reassignment.

In Lockwood v Cheshire and Wirral NHS Foundation Trust and others [2024], the tribunal considered similar dynamics, reinforcing that employers must tread carefully when implementing diversity initiatives to protect gender and sex identities as those identifying as non-binary are not covered by the definition of gender reassignment in the Equality Act 2010.

In Kelly v Leonardo UK Ltd [2024], the employment tribunal rejected a female employee’s claims of sex-based harassment, direct discrimination, and indirect discrimination arising from her employer’s policy granting toilet access based on self-declared gender identity rather than biological sex.

An opposing take in Peggie v Fife Health Board and another [2025]

In Peggie v Fife Health Board and another [2025], the claimant, an NHS nurse, objected to sharing the hospital’s female changing room with a trans woman colleague who had been granted permission by the employer to use those facilities. Following a confrontation between the two in the changing room, the claimant was suspended pending investigation and subsequently brought claims of harassment and discrimination.

Crucially, the tribunal held that it was lawful for the employer to grant the trans woman permission to use the female changing room, and that the claimant had herself harassed her colleague through the manner in which she expressed her gender-critical beliefs during their encounter.

This stands in stark contrast to case, where the tribunal found that requiring women to share changing facilities with a trans woman amounted to harassment. Peggie demonstrates that protection for gender-critical beliefs is not absolute, and that the manner of their expression remains subject to scrutiny. Employers retain latitude to address conduct that crosses into harassment, even where the underlying belief is protected.

Behind the scenes and guidance for the creative sector

The creative industries present unique considerations. Productions frequently involve intimate working environments, shared facilities, and high-profile talent whose views may attract public attention. Employers and production companies should consider the following:

• Policies addressing diversity, equality, and inclusion must be carefully drafted to avoid appearing to favour one protected group over another;
• Training materials should be reviewed to ensure neutrality;
• Where disputes arise involving competing protected characteristics, a measured, evidence-based approach to investigation is critical;
• Given the public-facing nature of the sector, reputational considerations should not override lawful treatment of employees holding protected beliefs.

What lies ahead?

The case law in this area remains unsettled, and employers should stay alert to further developments within case law as they unfold. Appeals in key cases may yet reshape the current framework, and updated guidance from the Equality and Human Rights Commission following For Women Scotland is expected to provide clearer direction on single-sex spaces and facilities policies.

It’s worth keeping a close eye on how tribunals draw the line between holding a protected belief and expressing it in ways that crosses into harassment – this distinction remains very much dependent on the specific facts of each case. Reviewing policies, training HR teams and managers on balancing competing rights, and having clear complaint procedures in place will all be key. For media and creative industry clients, where public attention comes with the territory and reputation matters, getting ahead of these developments isn’t just good practice, it’s a must.

Our employment and immigration lawyers will continue to track developments closely. We will issue further updates as implementation plans are announced and highlight where we think the changes may have a particular impact on the media, technology and sports sectors. In the meantime, our specialists are here to help if you have any questions.