Sandie Peggie: Employment Tribunal, associated legal claims, and related matters - thread #68

Goodbye, Annex B!

We'll be lucky enough to have plenty of time to hear from Dr Searle directly soon enough!

I wonder whether Kate Searle now thinks the rest of the NHS are not good people like she is?

Just adding this here, even though there’s a separate thread on it: https://www.telegraph.co.uk/gift/9171152fba1febf7

Agree Glad and worse, SF wasn’t a workplace union rep/caseworker (which is basically one of your colleagues volunteering to help out) he was a full time union official. So whatever minimal training the local reps got by on, the officials should have known better. That’s why NC was focused on his training. It is literally his job to spot this and he should be able to label experiences correctly. If a black nurse came to him incoherent and distressed because her colleagues are calling her the n word it’s his job to label that racial discrimination, bullying and harassment and bring the union in to protect her. She shouldn’t have to know the statutes or say a magic formulation of words. Ditto SP. She’s distressed because she doesn’t want a man in the changing rooms. It’s SF’s literal job to say discrimination on the basis of protected belief we will protect you. Instead he says, you’ve bullied a colleague by misgendering her, we will represent you - because that’s what his training taught him to say.

Apologies that this post is so delayed that it may be irrelevant, but I've spent the last week or so being ill. It is about the Sandie Peggie tribunal, though.

I was interested in the absence of knowledge of the law shown by various RCN people. A good friend of mine has been a UNISON rep for many years, so I asked her about the training their reps have. I think she said that as a minimum the workplace rep would have at least one full day a year (it was probably more) devoted to keeping them updated, and any significant information would also be sent to them between training sessions. If the RCN does the same, why was Stuart Fraser (and were more senior RCN people) so unaware of the relevant law here? At some level it must have been decided not to include it in the training.

Unfortunately, like Mr Fraser, 'Forstater' meant nothing to my friend.

Absolutely delicious. We’re having to ration ourselves. Thank you

It's great to be able to read it all in full. Tribunal Tweets are fantastic. I really appreciate the work that they do.

Thanks, @WFTCHTJ . Sorry for derail.

Can I suggest we take discussion of the evidence based medicine stuff over to the relevant thread, so we're not derailing another Sandie Peggie thread?
https://www.mumsnet.com/talk/womens_rights/5586672-wellbn-brighton-gp-practice-do-not-believe-in-evidence-based-medicine-tt-at-employment-tribunal-tomorrow?

Now back to actually relevant stuff for this thread, thanks for the link to Naomi's submission @justabaker

I'm not sure that the discussion relating to what constitutes a protected belief has the bearing you think it has on the SC ruling that sex in the EA means biological sex, @Lacksie .

Naturally the protected or otherwise status of a belief has no automatic implications whatsoever regarding its truth or falsity. I mean, zero ikmplications: the relevant provisions aren't about truth at all.

Your other claim, regarding the implications of the ruling that sex means biological sex in the act, is a bit different because, the SC clarification DOES have implications about the lawfulness or otherwise of allowing transwomen into women's toilets etc.
You characterise the claim that you are objecting to as the claim that the SC judgement in itself, establish(s) that it is always unlawful to permit a trans woman to use a toilet labelled “women”.
Of course the judgement doesn't have those implications "in itself", because it is only one part of the legal framework.
And as for for "always", I think it is pretty evident that the Equality Act provides the framework for deciding what is appropriate in particular circumstances - so its implications will of course vary depending on varying circumstances, meaning that there will never be an a priori "always".
I've said in earlier posts that there are conceivable circumstances in which it would not violate the act to allow provide facilities for transwomen and women together. To that extent, I agree with you. But (a) I think those circumstances have the character of 'thought experiments' - i.e. they help us to make theoretical distinctions but have little bearing in the real world, in all cases where the exemptions relating to single sex provision apply. And (b) the Equality Act is not the only law at issue. Consumer law may prevent misleading labels in some situations; health and safety law in others; law relating to negligence in yet others. In all of those bits of law, there are potential implications for employers/providers/sellers who provide misleading information.

She's also claiming discrimination on the basis of perceived GC beliefs .

I’m not clear why our medic isn’t relying on GC for protected belief (already passed the Grainger test) and then EBM for professional protocols guiding what you should do at work. That said IANAL and I have a heavy cold (I would be very proud if this had somehow come to me via six degrees of separation from our Naomi).

And notes from the C's team of the final day.
https://drive.google.com/file/d/1zmowKg2utQOG93k6dwIuGomrINcKPcaq/view?usp=drive_link

Not sure how things are going on this thread but Tribunal Tweets have added a couple of documents to their Substack on Peggie vs RCN

Naomi Cunningham's submissions

drive.google.com/file/d/1z6MVVwVA8gnqxiPH5EV1HlfSeoDZbYq2/view?usp=drive_link

Luckily the standard gcse text was my usually trusty Roberts. I overrode it on the amount of blood a girl or woman loses during menstruation though!

I think this reflects a broader distinction that people have also struggled with in relation to the Supreme Court’s judgment in For Women Scotland. People are taking a legal ruling about how particular provisions of a specific piece of legislation are to be interpreted and applying it as though it were a much broader pronouncement about policy, philosophy, science or ethics.

A finding that the claimant’s belief in evidence-based medicine does not qualify for protection under the Equality Act would not mean that evidence-based medicine is wrong, unimportant or should not be practised.
Similarly, the Supreme Court’s clarification that references to sex, men and women in the Equality Act mean biological sex does not, in itself, establish that it is always unlawful to permit a trans woman to use a toilet labelled “women”, or that any such toilet is automatically unlawfully mislabelled. Those are separate questions about how the relevant legal requirements apply to particular arrangements.

The point is that determining what a legal provision means, or whether something falls within its scope, is not the same as making a general judgment about what is right, desirable or permissible in every context.

The respondent isn’t arguing that evidence-based medicine is wrong or unimportant. They’re arguing that a belief in its integrity doesn’t qualify as a protected philosophical belief under the Equality Act 2010.
they’re challenging whether it meets the Grainger criteria, including whether it concerns a weighty and substantial aspect of human life and has sufficient cogency and coherence The most plausible line of defence I should think is that evidence-based medicine is a professional methodology rather than a philosophical belief.

Whether their defence is persuasive should , I think, depend on how the claimant has framed her belief and how it relates to her safeguarding referrals. There’s an important distinction between objecting to a particular clinical practice because you believe the evidence doesn’t support it, and holding a broader philosophical conviction that medical interventions must be grounded in rigorous scientific evidence as a fundamental ethical obligation, with those objections arising from that conviction. The latter seems much more capable of qualifying as a protected philosophical belief

No need to panic, I think: By calling evidence-based medicine "just an opinion", they aren't meaning to imply that its tenets aren't true or fully established. They are only attempting to claim that it doesn't meet the standards that beliefs are required to meet to be protected under the Equality Act.

In principle, I can see the truth in this: A simple acknowledgement of a massively well-established truth won't generally count as a protected belief (my belief that my laptop is in front of me isn't protected). If such beliefs were protected, then the Equality Act would march imperiously into more or less any disagreement of fact involving employers or service providers.

This is perhaps the reason why it was so very odd that the legal manouevre necessary to establish the rights of gender critical women involved establishing that the perception of sex and its significance amounted to a protected belief.

I think the key difference, here, though, was the development of a widely accepted ideology that denied the reality/importance of sex. That ideology created the conditions for acknowledging the existence of what you might call a defensive 'shadow ideology' - namely the negation of gender ideology, with its own movement and adherents.

There is kind of a double status for sex realism. There's the original material perception of sex (and its implications), which is on a par with (e.g.) the belief that air is mostly nitrogen and oxygen. And there is the set of ideas, phrases, arguments, public expressions, etc., that women were forced into developing in their attempts to rescue the original basic perception of sex from gender ideology. The latter took on a character that allowed it to be recognised as a protected belief.

If a bunch of ideologues started to challenge the idea of evidence-based medicine, and harrass its proponents (if, say homeopaths became radicalised and rampaged around social media and NHS management meetings demanding a 'safe space' from evidence-based medicine), then scientifically-minded medics might develop a set of defensive ideas, phrases, arguments, public expressions, etc that could amount, in tribunals, to a protected belief.

I guess that in the Sussex case, the claimant is arguing that gender ideology has in fact created the conditions in which proponents of evidence-based medicine have had to develop a defensive set of ideas, phrases, arguments, public expressions, etc - and that it is therefore a protected belief

I hope not! I just used my dimly remembered so-called facts from my anatomy textbook in a gym instructor exam.

You know how you would sometimes refer to the textbook by the author name - well this one was a peach "everyone get your Hole out, today we're going to look at the major parts of the appendicular skeleton"

In general, evidence in one court case cannot be used in another unless both parties agree. So Sussex NHS arguing something in this case cannot necessarily be used against them in another.

Even if you could use this, I'm not sure what the argument would be. Their views on evidence based medicine would not make any difference in a case for medical negligence - that would be about whether care was of a reasonable standard. If it was, you don't have a case. If it was not, the reason it wasn't up to scratch is irrelevant.

I may have missed something, but I think their views would only be relevant if you were arguing that you were discriminated against due to your belief in evidence based medicine. I doubt that would be a winning argument in a case where you had been refused a specific treatment, or given a treatment that led to a negative outcome.

I don't think it would set much of a precedent; they can always argue something else in the next tribunal.

The more I read about this issue the more I am concerned where it will all end unless we return to common sense. I do agree it affects one senses and instinctive self preservation; many a reflex has saved me from harm. I was beginning to think I was now living in some sort of parallel universe where reality was being distorted. I’ve recently been having lots of medical tests and was asked in conversation by a consultant how they would address ( as in Mr etc ) correspondence to my previous medical consultant. I had to answer wryly I really didn’t know ( the person who was excellent by the way) had attributes associated with either sex/gender and neutral first name, we agreed to use the medical title and surname. For clarity think a 50 year old Eliot Page in a Savile Road suit (hence private). Yes it’s a minefield and an exhausting one.

Am I missing something, or would Sussex NHS winning that evidence based medicine is just opinion would give rise to potentially almost anyone who was denied a specific treatment or put on a treatment that had a negative outcome of any kind being able to take some kind of court action against said Sussex NHS?

I'm sure we've had TRAs here recently say the exact same thing about medicine being opinion based, with 'getting a second opinion' offered up as their "proof".