Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton

Excepting the Department of Education where privacy overrides safety and safeguarding. Their designs discriminates against disabilities and sex.

They actively changed the design a few years ago to enclose all secondary school toilet cubicles. This is a negative act as children with ‘protected characteristic’ disabilities are more at risk from harm because, unlike before, no one will know they have collapsed until it is too late. I emailed them and they said their designs feature doors that open outwards from the outside so you can remove a body. I said that’s not prevention or safeguarding as by the time you are removing a body it’s too late. I also spelt it out the safety concerns out for them with girls being assaulted in private cubicles that can be opened from the outside. They said toilets should be supervised. I said it is impractical for staff to supervise every set of toilets and check how many children are in a cubicle and how long they are in for. I gave them lots of evidence of all of the above harms and they replied it was because they wanted to increase privacy.

Privacy over known safeguarding issues and physical harms.

Theres a legal person on twitter who says the PC of GR is needed because without it, she wouldnt have been able to give support to trans people. She didnt say how, but i assumed it was around tiltle changes, but it could easily be around time off work for surgery and medical appointments without it being an illness.

flyingbuttress43. On this

In an ideal wold the hospital board back in 2004 would have employed someone in "HR" whos job it was to look at new employee laws (they woild have had someone do the same for any area of opperations so drug being illegal banned etc.)

In real life new minimum wage or the GRA or whistleblowing etc. should be picked up before they became law.

The GRA covers staff and service users so its a big project that needs new policy.

It was the boards job to hire people to write the policy and tell the board where clashes would occur. The board had a duty to get legal advice or instruct the employee to buy it. Equally hire of Equalities Officer needed to recognise the ability to champion everyone (see the CR problem as a problem ) not just flavour of the day causes.

That covered the need to look at staff areas and if or when a male should be allowed to use female spaces when it created a clash of rights of a single female employee or specific legislation. They build/maintain hospitals so they employ someone to be current on the legislation around buildings.

So the culture of the organisation (from 2004 to date) was to ignore the problems and create new staff policy. The Stonewall effect (where a lobby group gave brownie points for been seen to go above the legal minimum) created a pyramid and the hospital ignore the PC of sex and instead merge 2 PC and call it gender.

So that Equalities Officer has a get out of jail card as she was applying the pre-agreed rules.

All of the managers ( involved including the EO) get a WTF rating because none stopped to ask how they can force a woman to undress beside a man. ( we know that it was because the man got to call her self a woman ).

Now in open court the hospital hear that the man expects that other employees will also pretend that he is a woman and call her in to attend a woman who will only accept treatment from another woman.

The managers all knew because they would say the woman had not given informed consent. They either supported the ideololy or were too afraid to whistleblow the problem into a hostile work environment.

Its about levelling the playing field.

You can act to positively elevate to the same level as the default. But you can't act to negatively reduce a group in some way.

Hence why its called equality.

You also have to balance interests, with the most important consideration being safeguarding from physical harms where there are points of conflict.

It is indeed made up. It does not come from the Equality Act. There is nothing in that Act requiring men identifying as female to be allowed access to women's changing rooms or women identifying as male to be allowed access to men's changing rooms. It does not come from official guidance from EHRC either. EHRC specifically list changing rooms as an example of a legitimate single sex service.

Re your earlier post, the Regulations do not override any protections in the Equality Act, but the Equality Act does not override the Regulations either. There is absolutely nothing in the Equality Act that gives a transwoman without a GRC the right to use a women's changing room, nor is there anything that requires employers to allow a transwoman without a GRC to use such a facility. The position is less clear if the transwoman has a GRC

Yes, the carve-out for disability has an alarming repercussive effect on the interpretation of the previous clause.

But why, then, do CAB advise that discrimination against married people can be illegal, but discrimination against single people cannot?

Positive discrimination is unlawful.

Okay, that reference goes quite strongly against my understanding.

The positive action provisions are exceptions to the usual requirements of discrimination law that prevent those with a particular protected characteristic being treated differently, either better or worse, from those without that same characteristic.

Now, is that actually stated in the law? Or is it something that guidance is accidentally inferring from the symmetry of most of the characteristics. Let's dig.

The text in the law I'm familiar with says

"A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."

Now, I've always interpreted that referring to a protected characteristic B has (and I've seen plenty of others making the same interpretation) but it doesn't actually say that.

And there is a clause below explicitly stating an asymmetry for disability

"If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B."

which does concur with the interpretation that you can't discriminate against someone without a protected characteristic.

So maybe my thought experiments don't actually work.

👍 WandaSiri
My poat was just so people reading recognise the limit and thinking process that is applied.

It's just awkward wording on my part. There are valid reasons why adjustments have to be made for Disability and Pregnancy or Maternity and those adjustments can't be challenged, unlike say sex discrimination. I was replying to a pp that those PCs are explicitly treated differently to other PCs.

You can treat people with a disability and pregnant women differently/more favourably because the Act specifically says you can.

The aim is prevent excluding the individual from society or employment not to treat more favourably. The outcome is not ment to be different or more favourable.

This is where it has all blown up in the US with their strong survival of the fitest meritocracy ideology.

There's no rule against discrimination on the basis of a lack of a protected characteristic.
I'm not arguing that there is.

There are other things like pregnancy/disability/gender reassignment where only certain people have it, and the resulting legal protection is asymmetrical.
I clearly said that pregnant women and people with disabilities can be treated more favourably than others because the EA allows it.

Positive discrimination is unlawful.
Positive Action is different, it's an exception carved out by the act.
https://www.gov.uk/government/publications/positive-action-in-the-workplace-guidance-for-employers/positive-action-in-the-workplace#what-is-positive-action

@NecessaryScene I love your thought experiment so much.

Why isn't this whole sorry business being covered on Panorama, File on 4, etc?
(No need to reply: we all know why.)

I like to entertain myself with thought experiments like - suppose I arrange for all my male employees to get GRCs? Then I can pay them more than the women, with no comeback

Yes, I think the core of that is correct. But only if there's nothing stopping the women getting the GRCs and you would give them an equivalent payrise for getting one.

Everyone would need the same GRC opportunity - the act of arranging the GRC only for the men in the first place would be sex discrimination.

It would be potentially more watertight if you were notionally a "female-only" establishment with being "legally female" as a requirement, if that's the way the EA2010 is being interpreted.

Then the only viable candidates would be men with GRCs and women without GRCs - the women would not be able to get GRCs without becoming ineligible for the job. Your employee pool would be low-paid non-GRC women and high-paid GRC "women".

Maybe another argument for why the "legal sex" interpretation of the EA2010 leads to daft outcomes.

Positive discrimination is unlawful.

Not inherently. "Positive discrimination" is unlawful when it's a euphemism for an illegal form of discrimination.

"Positive discrimination in favour of blacks/women/atheists/the religious" is illegal as that's euphemism for "discrimination against whites/men/the religious/atheists".

"Positive discrimination in favour of the pregnant/disabled/gender reassignmenty" is not illegal because the resulting "discrimination against the non-pregnant/non-disabled/non-gender reassignmenty" is not illegal.

What's illegal is discrimination against people on the basis of a protected characteristic they have. There are some things like sex/race/belief where everyone has the protected characteristic (atheism is covered by belief). Therefore any discrimination on the basis of one characteristic can be challenged by anyone.

There are other things like pregnancy/disability/gender reassignment where only certain people have it, and the resulting legal protection is asymmetrical. The characteristic isn't "being X or not", it's "being X".

There's no rule against discrimination on the basis of a lack of a protected characteristic.

I like to entertain myself with thought experiments like - suppose I arrange for all my male employees to get GRCs? Then I can pay them more than the women, with no comeback

I know this is (presumably!), a bit of mind speculation, but you can easily see how people will not just leverage laws to their own ends, but get them implemented in the first place.

I'm thinking of Whittle, etc.

Managing to get gender reassignment as a protected characteristic, when gender reassignment can actually be just thinking about something, was an extraordinary feat, and I'm gobsmacked that any politician bought it.

Then that would be unlawful positive discrimination (or just bad management!).

Positive Action would be setting up something like an activity group, or a training course, or inviting job applications only for people with identities and you would have to be able to justify it by showing they were underrepresented and disadvantaged (there may be a third criterion) in that arena. Given the tiny proportion of people with identities in the general population, and the fact that many of them are comfortably off middle class types with good jobs anyway, I think it would be difficult to show that. But if there was a genuine case...crack on.

IANAL.

I agree, they should not get preferential treatment.

But in terms of the equality act, who would you be comparing them to?

you can see how unintended consequences can so easily happen if you don't have a fiendish brain!

Utilising laws to create equality in order to create inequality being just one of them.

Discrimination is only illegal if the law says it is. There isn't a general ban on discrimination on arbitrary grounds.

For example, the EA bars discrimination against married people, but not discrimination against single people.

Happy to be proved wrong in relation to the trans issue though!

https://www.telegraph.co.uk/news/2025/02/17/nhs-fife-beth-upton-transgender-equalities-minister-advice/

Wasn't sure which of the numerous threads on Fife to post this, but this one seems the most appropriate (apologies if it has already been posted - hard to keep up).

The article says that NHS managers acted on the advice of an equalities officer rather than lawyers. Quotes Dr Michael Foran, a legal academic at Glasgow University saying issues around single-sex spaces wer contentious and that equality and diversity departments were typically not qualified to offer advice in this area.

@WandaSiri “Positive action to give opportunities or encourage people sharing a single protected characteristic (in this case GR) into an area in which they are underrepresented and disadvantaged is lawful but I don't think that would extend to higher pay.”

But if people are promoted into higher wage jobs than they are qualified for, because of their special identity, that would indeed have the effect of giving them higher pay than others who are equally well qualified.

Correct, imo. If it's not an illness, then the extra leave is just a perk.

This has made me think. A colleague discussed something related to this with me the other day. People undergoing gender reassignment are allowed to take as much “sick leave” as they need for anything related to gender reassignment.

Other sick leave is assessed and formal proceedings can be put in place if you go over six days in a year.

There’s no good reason that I can see, that patients undergoing treatment related to gender reassignment should get preferential treatment at work over others who are chronically sick, who have to jump through hoops and have everything overseen by HR and occupational health.

Random contributions...
I don't think you can lawfully pay people with identities more purely for that reason. Positive discrimination is unlawful.

You can treat people with a disability and pregnant women differently/more favourably because the Act specifically says you can.

Positive action to give opportunities or encourage people sharing a single protected characteristic (in this case GR) into an area in which they are underrepresented and disadvantaged is lawful but I don't think that would extend to higher pay.

I guess that trans people, like disabled people, are seen as such a small group that there is no practical need to protect people outwith the group. Whereas men and white people do need protection, despite being historic beneficiaries of discrimination.

I like to entertain myself with thought experiments like - suppose I arrange for all my male employees to get GRCs? Then I can pay them more than the women, with no comeback (but then the women could all get GRCs, and claim sex discrimination!).

I guess that’s a major fault in the EA in any area where there isn’t equal protection for all groups (eg age, sexual orientation and sex, as everyone has a category there).

It won’t have necessarily crossed their minds as they were writing it, that groups they thought were likely to suffer discrimination, might very occasionally have positive discrimination, but those outside that category would have no recourse. It’s an interesting conundrum. I bet Stonewall pay scales would be interesting. They certainly appeared to have some people in high level roles who appeared wholly unqualified, other than because of their special identies.