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Feminism: Sex and gender discussions

Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton

112 replies

Inauthentic · 17/02/2025 03:48

Is the following statement correct?

In Scotland, transgender employees can use restrooms that match their gender identity, with or without a GRC.

Employers should not require proof of legal gender recognition unless they have a strong, lawful reason.

Denying access could be considered unlawful discrimination under the Equality Act 2010.

OP posts:
illinivich · 18/02/2025 10:52

Is it legal to pay a disabled person more than someone without a disability?

Disability is similar to GR in that the absence of GR and disability isnt unjustly discriminated against.

Edit: i suppose an employer could give a disabled employee alternative working conditions, which may be a similar point.

Datun · 18/02/2025 10:39

I don't know. But if I want to pay my trans employees twice what I pay everyone else, then the EA won't stop me. That is all

i've sat here for five minutes trying to work out why that can't be true.

But I can't. 😮 it's extraordinary.

I'm amazed that we aren't finding pink washed organisations doing exactly that.

theilltemperedqueenofspacetime · 18/02/2025 10:05

Datun · 18/02/2025 07:14

It doesn't mean you get special treatment. It just means you can't be discriminated against on the basis of it. So you can't be fired, or denied housing for example.

But in order to determine whether or not you're being discriminated against, you have to compare yourself with people who don't have the characteristic.

We discriminate all the time. We discriminate on age in school, for instance. To drive or drink.

You're allowed to discriminate under certain circumstances.

Under what circumstances would you be favouring someone with the protected characteristic of gender assignment, over someone who doesn't have it?

All excellent points, but I was making only a single, not particularly sophisticated, point about the different categories of protected characteristic.

A PP suggested that letting Upton into the women's CR would be discrimination against the rest of the men, who are excluded.

Whilst there are lots of arguments against (it is disadvantage, not exclusion, that counts, and the men are not disadvantaged, because they have their own CR: the LAPA that allows sex-segregation in spite of sex discrimination law is arguably not fatally undermined by allowing in a small number of transwomen: if letting in TW is in itself sex discrimination (because women are more disadvantaged than men are by mixed-sex provision) it could still be rendered legal by calling on a LAPA related to trans welfare, and so forth).....

.....there's a single overriding reason the suggestion doesn't work. Which is that illegal discrimination against trans people (someone with the PC of GR is unjustly disadvantaged compared with someone without that PC, and of the same legal sex) can exist, but the reverse legal concept doesn't exist.

You asked under what circumstances would [anyone] be favouring someone with the protected characteristic of gender assignment, over someone who doesn't have it?

I don't know. But if I want to pay my trans employees twice what I pay everyone else, then the EA won't stop me. That is all.

(It's a really trivial point, and I'm kind of regretting mentioning it now!)

AnSolas · 18/02/2025 08:37

illinivich
If fife didnt write the policy of allowing men who identify as women into the female changing areas, they might have been able to claim that they are using the GMC register as sex.

The GMC registration has to be backed up with ID. Lots of female medic keep their name professionally as they have to go back and requests new cert documents if their id is not the same
And they are a hospital where iding sex matters.

They are a hospital with a primary duty of care as service providers
The fact that the ethics around informed consent put the service provider first in the GMC world says it all.

illinivich · 18/02/2025 08:22

Roo53 · 18/02/2025 07:12

They are also the service provider which means it is their decision

Even if they were a service provider, why should they be allowed to falsely advertise their services?

If they dont offer single sex changing, they shouldnt have female or women on the door.

illinivich · 18/02/2025 08:20

If fife didnt write the policy of allowing men who identify as women into the female changing areas, they might have been able to claim that they are using the GMC register as sex.

But because they have said upton can use the changing room because of internal policy rather than the sex based legalisation, they are acknowledging that he is male and are disregarding workplace regulations.

Politicians are been complicit in this by pretending that the Equality Act is relevant here and not the workplace regulations.

WandaSiri · 18/02/2025 07:27

Roo53 · 18/02/2025 07:12

They are also the service provider which means it is their decision

They are an employer therefore they are legally required to provide separate changing rooms for male and female staff.

If they choose not to do this, they're not only breaking the law of the Workplace Regulations 1992, they are also unlawfully discriminating SP directly and against all their female staff indirectly.

Datun · 18/02/2025 07:14

theilltemperedqueenofspacetime · 17/02/2025 19:20

It is though. Gender reassignment is a protected characteristic, but 'being cis' (shudders) isn't

It doesn't mean you get special treatment. It just means you can't be discriminated against on the basis of it. So you can't be fired, or denied housing for example.

But in order to determine whether or not you're being discriminated against, you have to compare yourself with people who don't have the characteristic.

We discriminate all the time. We discriminate on age in school, for instance. To drive or drink.

You're allowed to discriminate under certain circumstances.

Under what circumstances would you be favouring someone with the protected characteristic of gender assignment, over someone who doesn't have it?

Roo53 · 18/02/2025 07:12

They are also the service provider which means it is their decision

Bunpea · 17/02/2025 20:31

theilltemperedqueenofspacetime · 17/02/2025 19:20

It is though. Gender reassignment is a protected characteristic, but 'being cis' (shudders) isn't

Sex is also a protected characteristic

theilltemperedqueenofspacetime · 17/02/2025 19:20

Bunpea · 17/02/2025 19:16

really? That doesn’t sound right.

It is though. Gender reassignment is a protected characteristic, but 'being cis' (shudders) isn't

Bunpea · 17/02/2025 19:16

theilltemperedqueenofspacetime · 17/02/2025 10:54

Discrimination in favour of trans people, and against others of the same legal sex, is not illegal.

really? That doesn’t sound right.

peakedtraybake · 17/02/2025 17:17

@Inauthentic I think I've confused matters by mentioning the Supreme Court case. This isn't at all relevant here, as Dr Upton has no GRC and remains legally male.

WaterThyme · 17/02/2025 17:16

@Inauthentic, are you using ChatGPT?

BarbieBrightSide · 17/02/2025 17:03

Inauthentic · 17/02/2025 10:27

There seems to be some confusion around this point.

My understanding is that self-identification matters under the Equality Act because protection is based on a person’s intention and actions, rather than their legal document.

The PC of Gender Reassignment does not mean that people should be treated as the opposite sex (or none for that matter) for all purposes, though.

The PC of Gender Reassignment is to ensure that those individuals who are proposing to change their gender (whatever that means to them, I am not a believer in Gender Identity Ideology) should not be treated any less favourably than a person who does NOT have the PC of Gender Reassignment.

Inauthentic · 17/02/2025 15:21

@peakedtraybake Thanks. It does seem that
the judgment from the Supreme Court case could have significant implications for the tribunal case involving Sandie Peggie.

From what I read the tribunal may allow for future reconsideration if the Supreme Court’s ruling significantly changes the legal framework.

It will be interesting to see which ruling comes first.

OP posts:
Shortshriftandlethal · 17/02/2025 15:15

Any idea when the outcome of the 'For Women Scotland' appeal heard by the Supreme Court is to be announced?

This was to clarify the definition of 'Sex' in the equaliity act.

https://sex-matters.org/posts/updates/for-women-scotland-in-the-supreme-court/

nebulousMoose · 17/02/2025 15:03

CeciledeVolangesdeNouveau · 17/02/2025 08:16

OP, things end up in court where there is disagreement on the facts (did the behaviour of one person about to harassment of another, for example). One of the reason people on both sides of this deplorably polarised debate are paying so much attention to this case is a disagreement about the law, which is not settled yet.

I'm grateful you gave the correct name of the Equality Act, by the way, pedant that I am! Also lawyer, I'm studying for my professional exams with two degrees which is why I have been following the case very cursorily.

I actually haven't paid more than passing attention and if you come back to this thread I'll look it up, but if the law were unequivocal then it wouldn't be in court. There would also not need to have been a debtate, campaign and several policy changes about self-ID if it were already enshrined in law. Finally, whatever the legal definition of male and female (words you used) are, it will not be based on self-ID, and the law on the meaning of gender reassignment will draw heavily on GRCs and the process of getting one, because that is the way the law recognises gender reassignment.

Either way you won't change anything by asserting quite a shaky interpretation of the law at some strangers on a part of this site with extremely strong views. If you want to impress or engage some lawyers I'd suggest actually quoting statute and case law, as well as government policy and any guidance that exists.

Have a great week, all.

Your post is a very good start to my week, thanks!

snickersbarchild · 17/02/2025 14:03

This has just reminded me of way, way back in primary school, when a young kid got themselves locked in the toilet cubicle and panicked, the teacher was able to ask the kid to slide under the partition. Smaller head size enabled the kid to do this (it also enabled some little sods to lock doors and slide out thus leaving an apparently occupied toilet!).

Keeptoiletssafe · 17/02/2025 13:59

Greyskybluesky · 17/02/2025 13:52

Thanks @Keeptoiletssafe I always find your posts really informative.

Near where I live a young person got very drunk and passed out in a women's toilet cubicle. Someone more athletic than me managed to wriggle over the cubicle gap and open the door from the inside. Young person was saved.
If that had been in a fully enclosed cubicle we wouldn't have even known she was in there.

Thank you. That’s what happened in my first story too. Now there’s new problems of women being spiked at nightclubs and even children in schools (through vapes). I have heard so many heartbreaking stories it’s nice to hear a positive one!

Greyskybluesky · 17/02/2025 13:52

Thanks @Keeptoiletssafe I always find your posts really informative.

Near where I live a young person got very drunk and passed out in a women's toilet cubicle. Someone more athletic than me managed to wriggle over the cubicle gap and open the door from the inside. Young person was saved.
If that had been in a fully enclosed cubicle we wouldn't have even known she was in there.

fabricstash · 17/02/2025 13:52

AnnaFrith · 17/02/2025 11:45

I'm not a lawyer, but I don't think you understand the official guidance from the EHRC which is here:
Separate and single-sex service providers: a guide on the Equality Act sex and gender reassignment provisions | EHRC

This gives examples of situations where it is lawful to exclude someone with the protected characteristic of gender reassignment from the single sex spaces of their desired sex. It is legal to do this if you have good reason 'for example, dignity, privacy, preventing trauma or ensuring the health and safety of others'. Excluding transwomen from a communal changing room can clearly be justified on theese grounds.

It also points out the necessity to balance the needs of people with different protected characteristics, eg sex or belief. It is NOT the law that 'gender reassignment' trumps all the other protected characteristics.

The Equality Act does not make it unlawful for service providers to exclude transwomen from women's spaces, but it does not put them under an obligation to exclude them. But as the commentary notes, the Workplace (Health, Safety and Welfare) Regulations 1992 do place obligations on Employers to provide single sex toilets, and changing rooms if they are required.

From what we have heard so far, it seems vanishingly unlikely that NHS Fife made any effort to balance the needs of Dr Upton against the needs of employees with other protected characteristics before allowing Dr Upton to use the women's changing room.

As I said, I'm not a lawyer, but if this guidance correctly reflects the Equality Act, I think the Act should be amended. If there is justification to offer a single sex service to women, it should be COMPULSORY to exclude transwomen from that service. If there is a need to exclude some men, there is a need to exclude them all.

Edited

This! Michael Foran has spoken about this with regard to law. Also the comparator for a transwoman under the act is a man, and for a transman would be a woman. You might use this with regard to pay or promotions etc. It is not intended to erode privacy, dignity etc

Keeptoiletssafe · 17/02/2025 13:46

What are the practical implications of this?

I campaign for safe toilet rooms. It was depressing that Dr Upton’s ‘solution’ for changing rooms was similar to the one I have heard before for toilets - a gender neutral area with completely private cubicles.

Health &Safety
Dignity &Privacy

These phrases keep coming up.
If you are to design a changing room or set of toilet cubicles, which out of the 4 words is the most important?

Being SAFE of course. I would have said health comes second - you need to come out without picking up a disease.

Everyone is safer when toilet cubicles have gaps under the door. It is a reasonable adjustment to override complete privacy for everyone. It is particular an essential adjustment for the 1% of the population with epilepsy and for people with other invisible disabilities. Hypos, strokes (1 every 5 mins in the uk), heart attacks (1 every 5 mins in the uk), head injuries, spikings, fevers: all conditions where you may get nauseous and head to the loo.

Everyone is healthier when toilets have gaps under the door. It is a reasonable adjustment for everyone. Scientific research proves toilets can be cleaned better and ventilation (to prevent concentration of airborne diseases) is greater.

As soon as toilet blocks become mixed sex they are more dangerous and less healthy. The doors and partitions go down to the door. Precisely because collapsed bodies impede the inwards door opening, in such cubicles the doors have a mechanism so they can be opened easily from the outside, outwards. The doors and partitions have to adequately resist the passage of sound. These are the government’s design requirements in the recent Document T (for public toilets in workplaces and venues) for mixed sex toilets.

This impacts on everyone’s safety because there is a mixed sex public area where everyone is expected, next to a private cubicle where criminal activities can take place without being witnessed, so it favours the perpetrator. They can even let themselves in.

Rapes and sexual assaults happen every day in such spaces. When people say ‘well what about disabled loos and on trains?’ - yes, look at newspaper reports at where they are taking place. In schools it was noted in past reports to be the broom cupboard. Same principle. We do not need more of these private spaces in public mixed sex areas. Assaults in hospitals and schools are endemic and it is fuelled by having cubicles of privacy.

The safest and healthiest solution is the same designs that have worked across much of the world for years. Because the priorities were health and safety. Single sex toilet blocks with cubicles having door gaps, particularly the one from the floor to bottom of the door. This is so you can prevent cubicles being a place of criminal activity or a place someone dies/ suffers long term damage. Gaps can also help quick rescue times in the event of a building evacuation. They can be cleaned easily.

There was lots of consultation for toilet cubicles in Document T. The government commissioned a private firm (ARUP) to look at the requirements of people with disabilities and long term health conditions to inform future policy and guidance. In the whole 171-page document there was no mention of the words: seizure, faint, diabetes, cardiac, heart, epilepsy, syncope, endometriosis, menorrhagia, collapse. There was one mention of ‘stroke’ in reference to a grab rail. In the report the article references to periods are only in relation to transgender people.
They recommended full height cubicles and the evidence was based on this quote from two Americans who design for trans inclusiveness, ‘A better solution, supported by many transactivists, and increasingly found in trendy nightclubs and restaurants, is to eliminate gender-segregated facilities entirely and treat the public restroom as one single open space with fully enclosed stalls.’
Those American designers still (as of April 2024) hadn’t actually done any health and safety tests on their designs.

Whats the point in having defibrillators in public places then making the place where people go when they are feeling ill completely private? Oxygen is needed for the brain to make use of glucose, its major energy source. If the oxygen supply is interrupted, consciousness will be lost within 15 seconds and damage to the brain begins to occur after about four minutes without oxygen.

There is a defibrillator in every secondary school because they save lives if used in time. Yet you need to be able to see if someone has collapsed. In the last few years the DfE have reduced the floor to door gaps from 150mm to 5mm on all toilet cubicle doors. In addition have also introduced the term gender neutral and their designs now stipulate a gender neutral toilet on each floor (separate from accessible/disabled). Safety isn’t mentioned once in the DfE building design document section on toilets. Privacy is mentioned multiple times. When I questioned the decrease in safety, the DfE said the designs were for privacy and if schools follow their stipulated designs, the responsibility for pupil safety and safeguarding ultimately still falls on the school and governors so it is up to the schools themselves to decide what is best for their cohort.

Doors gaps do save lives. I know because I saved a young woman in a nightclub once because I saw her blue hand sticking out the ladies toilet cubicle door gap. I live with not saving another young person from being permanently injured, even though they were only a few feet away, because I didn’t realise they had collapsed behind a full height door. So many people have told me their stories too.

In terms of how toilet design got here, to the point where toilet cubicles are much less safer for everyone than they used to be, you can see it’s because people are forgetting/overriding safety and health. Everyone is concentrating on the effect of not being able to control toilets being mixed sex so the knee-jerk solution is privacy. But it’s too heavy a price to pay for the loss of safety, affecting those with the protected characteristics of disability, age and sex (particularly girls and women) the most.

Btw if anyone wants medical/ scientific/ government document references and evidence to any of above I am pleased to supply it. I have lots more than discussed here as I have tried (!) to keep this short.

From my research on toilet area design, I think a single sex communal changing area with single sex toilets off (with gaps at least at the bottom of the toilet cubicle doors) is the safest and healthiest option. Why would you want any other design? It’s certainly not for better health and safety.

frenchnoodle · 17/02/2025 12:48

Inauthentic · 17/02/2025 06:27

It appears that although the EA 2010 does not explicitly use the term "gender identity" - the law does protect trans people under "gender reassignment", which applies to anyone who is proposing to undergo, undergoing, or has undergone a process (social, medical, or legal) to change their gender. This protection does not require a GRC or medical transition.

Edited

So stop using gender identity when discussing law, it is wrong.

AnSolas · 17/02/2025 11:57

Inauthentic · 17/02/2025 10:27

There seems to be some confusion around this point.

My understanding is that self-identification matters under the Equality Act because protection is based on a person’s intention and actions, rather than their legal document.

You are missing the focus of the case.

The employee in question is Sandie Peggie.

She is an employee and has rights.
Her employer has an obligation to uphold these rights.
She has a right to a single sex space.
How her employer manages that is its problem.
She has a right (or at least belives she has a right) not to be bullied because she did not want to undress beside a man ( or shower where shower areas are open)
She has a right ( as above) not to be bullied because she did not want to be in a room while a man undressed.

So if or how her employer manages or provides for other employees is not her business.

So did the NHS have an obligation to Sandie Peggie for single sex provision.
If it had an obligation was it provided.

Similar idea around Sandie with a need for say wheelchair access. Under disability an employer has no obligation to convert all their CR.

Sandie was a muslim man with a need for say a woman free CR. Under Religion & belief has no obligation to convert all their CR.

The NHS can not argue they do not have to provide CR because its a infection control contractual obligation.

Only once Sandie's rights are established can the NHS begin to argue why they had a single sex provision (even if it was an open CR) and how an open mixed sex CR is the same or how they never had a single sex provision to start with.

If Sandie wins and the employer removes Uptons access Upton can in turn sue NHS Fife to be given access to a mixed sex CR

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