Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton

[Inauthentic]

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.

really? That doesn’t sound right.

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

Sex is also a protected characteristic

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

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?

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.

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.

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
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.

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!)

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.

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.

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.

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!).

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.

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.

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

@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.

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.

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!

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.

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 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.

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

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.