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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:
Ereshkigalangcleg · 17/02/2025 10:39

The only way they may possibly gain a legal "woman" status when it comes to single sex spaces is by applying for a gender recognition certificate

And I should add, the law says it is possible to exclude them from women's spaces even then if it's a proportionate means of achieving a legitimate aim.

Inauthentic · 17/02/2025 10:41

peakedtraybake · 17/02/2025 08:48

I've followed a lot of these cases and my understanding is as follows. IANAL and interested to hear from any lawyers on this.

Given that Dr Upton doesn't have a GRC, his legal sex is male (regardless of her gender identity). In the recent supreme Court case, it was common ground that someone with the protected characteristic of gender reassignment but without a GRC retains their legal sex. The 1992 regulations pertain to legal sex, and Fife had a clear obligation to provide single (legal) sex changing rooms.

Had Dr Upton had a GRC, the situation would be different and the law unclear: we don't know if his/her legal sex change would be enough to allow him/her to enter the women's changing room. We can expect clarity about that only once we hear from the Supreme Court on the case heard late last year
sex-matters.org/posts/updates/for-women-scotland-in-the-supreme-court/

OP, I expect you will consider this a biased source and I can sympathize with that. The article however contains links to key submissions, which you may find helpful.

This is helpful, thanks for the link

OP posts:
ThatsNotMyTeen · 17/02/2025 10:42

Inauthentic · 17/02/2025 04:36

But if NHS Fife had refused Dr. Upton access and only offered an alternative, that could have been challenged as discriminatory. Their approach aligns with current equality law and best practice unless there is a specific lawful reason to exclude her.

Dr Upton is legally a man. Men can and should be excluded from female changing rooms. He is a man with the protected characteristic of gender reassignment under the Equality Act. That does not change his sex. The only thing that could do that is a GRC, which he plainly didn’t have, as he hadn’t been living in the so called acquired gender long enough.

As for not being able to ask if someone has a GRC, we surely cannot have the absolutely bonkers situation where someone claims to have a right that it confers, and then they can say it is illegal for their employer to ask for proof they have that right?!

ThatsNotMyTeen · 17/02/2025 10:45

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.

Self identification is not the law in the U.K.

ThatsNotMyTeen · 17/02/2025 10:46

Ereshkigalangcleg · 17/02/2025 10:39

The only way they may possibly gain a legal "woman" status when it comes to single sex spaces is by applying for a gender recognition certificate

And I should add, the law says it is possible to exclude them from women's spaces even then if it's a proportionate means of achieving a legitimate aim.

Correct

Boiledbeetle · 17/02/2025 10:47

Llamasarellovely · 17/02/2025 09:21

If I could post a pic it would be of a rock. Grey in colour.

Kung Fu Wtf GIF by A24

A grey rock for you x

Tallisker · 17/02/2025 10:47

RedToothBrush · 17/02/2025 09:09

No the statement is incorrect because we don't have restrooms in Scotland, we have toilets and changing rooms.

So the statement has clearly been rehashed by an American rather than by someone who understands anything about the UK either north or south of the Scottish border.

Language matters. It reveals that there's someone not even in this country has an agenda over this case.

My thoughts exactly, Red. In fact I scrolled back up a couple of posts ago to see what time the original post was made.

RedToothBrush · 17/02/2025 10:49

Tallisker · 17/02/2025 10:47

My thoughts exactly, Red. In fact I scrolled back up a couple of posts ago to see what time the original post was made.

Yeah funny time to post if you are in the UK.

I do post at weird hours, myself, so it's possible but...

pikantna · 17/02/2025 10:51

In fact and in law Dr Upton is male. Also, apparently, somewhat stupid (that simpering rubbish about being biological and 'female' made me genuinely embarrassed for him and his supporters) and sadistic (to seek to have a woman punished for being unwilling to undress in front of him). Those supporting him in light of what has been revealed during the tribunal so far are disappointing human beings.

theilltemperedqueenofspacetime · 17/02/2025 10:54

User0103 · 17/02/2025 05:54

They are also discriminating against all the other men who are not given access to the ladies changing room.

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

Datun · 17/02/2025 10:58

He doesn't have an GRC, OP, so he remains legally male.

In terms of the Equality act it means he can't be discriminated against on the basis of his gender assignment status. Which means he can't be treated any differently to any other man. You can't treat him differently to any other man just because he's trans.

At the moment, all the other men in the hospital, could claim that they are being discriminated against, unless they are allowed in the changing room too. On the basis of their sex.

The changing room can exclude all men on the basis of sex, fine. But not all men except one.

Stonewall has claimed that he can't be treated differently to any woman. That's wrong.

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.

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

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.

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.

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

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.

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!

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!).

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!

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/

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:
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.

WaterThyme · 17/02/2025 17:16

@Inauthentic, are you using ChatGPT?

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.