Page 18 | NHS Fife tries to silence nurse - Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton - thread #22

TwoLoonsAndASprout · 25/02/2025 16:21

TwoLoonsAndASprout · 25/02/2025 15:50

@GCEpileptic

as he is a normal decent man, the last place he wants to impose himself is a single sex womens toilet as he is respectful of women’s privacy. It makes him feel anwkward annd awful having to do it, so Jazzy you could ask your DS how he would feel in the same situation - having to impose himself into a busy women’s toilet. I’d imagine he too would feel extremely uncomfortable and it’s worth exploring with him why other men activelywant and seek to do exactly that. your DS is a young man,he won’t be able to feel or imagine the invasion of privacy a woman would, but he can imagine how a man would feel invading womens privacy. if that makes sense.

That makes SO much sense, and is a really, really useful, helpful contribution - thank you!

Had a think and am coming back to say that the true believer would say that it’s not men who are actively seeking to impose on women’s spaces, it’s women, because of course TWAW.

So we’re back to that.

Poop.

BonfireLady · 25/02/2025 16:26

TwoLoonsAndASprout · 25/02/2025 16:21

Had a think and am coming back to say that the true believer would say that it’s not men who are actively seeking to impose on women’s spaces, it’s women, because of course TWAW.

So we’re back to that.

Poop.

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Poop indeed. But the points you raised were great ones.

Perhaps all that's needed on the end of it is something like "I appreciate you believe that TWAW, so this isn't about men in women's spaces. But there are plenty of people that don't hold this belief. Can you imagine how it might feel if someone is insisting that you accept their belief as true... [insert belief example here that would resonate]

prh47bridge · 25/02/2025 16:30

NotAGentleReminder · 25/02/2025 16:03

I don't think it does meet criterion (iv) in term of being cogent or cohesive. It may be serious and important to the person who genuinely believes it but it is easily falsifiable unless you force everyone to change the meaning of our commonly understood words we use to communicate with each other about things that are real, to mean something else that only some people believe. This is where it fails on (v) as well, as it relies on forcing others who do not share the belief, to use the language of the belief system, as well as overriding sex-based rights.

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Just as the GC judgement said Forstater couldn't force her belief on others, saying that DU's belief he is a woman is protected does not mean he can force it on others, nor does it mean he can use it to override sex-based rights.

Similarly with being cogent and cohesive. A belief being cogent and cohesive does not mean that others must accept it, nor even that it is not falsifiable. The fact that I think DU's belief he is a woman is manifestly ridiculous and don't buy into his belief system does not prevent it passing the cogent and cohesive test.

If the courts agree that DU's belief is protected, all it means is that he is protected from being discriminated against on the grounds of that belief. He can, however, be discriminated against if he acts on that belief in ways that trample on the rights of others. So he can't be sacked or disciplined just because he thinks he is a woman. However, he could be sacked or disciplined if, for example, he conducted an intimate examination on a woman who had specifically requested a female doctor, or used the female changing rooms, or gave a patient the wrong treatment based on his beliefs.

NoBinturongsHereMate · 25/02/2025 16:31

NotAGentleReminder · 25/02/2025 16:03

I don't think it does meet criterion (iv) in term of being cogent or cohesive. It may be serious and important to the person who genuinely believes it but it is easily falsifiable unless you force everyone to change the meaning of our commonly understood words we use to communicate with each other about things that are real, to mean something else that only some people believe. This is where it fails on (v) as well, as it relies on forcing others who do not share the belief, to use the language of the belief system, as well as overriding sex-based rights.

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I agree. GI belief is a mass of internal contradictions that fall apart the moment you actually look at them (which is why No Debate was so important). I don't see how it can possibly pass IV.

(Yes, most religions have a fair bit of logic fail - but they have 'God did it' as an excuse. GI doesn't have that get out clause.)

prh47bridge · 25/02/2025 16:32

BonfireLady · 25/02/2025 16:17

Thank you.

Just trying to get my head around this comment, so I'm going to break it down a bit:

We can't say definitively that it is not a protected belief.

Fair point! I even said myself that it hadn't been tested either way. D'oh.

I would be surprised if it isn't.

This is the bit I can't quite understand. Personally, I'd be surprised if it is because of a core tenet of the belief means that it conflicts with other people's rights.

However, the law and my opinion are blatantly not the same thing 😁
If I'm understanding this bit correctly...

As the EAT correctly said in Forstater, it is only beliefs that are an affront to ECHR principles that are not WORIADS. I fail to see anything in DU's belief that he is a woman that is qualifies as WORIADS. That does not, however, mean that all manifestations of his belief are acceptable. It is open to the courts to decide that his belief is protected but that he can't use single-sex facilities intended for women because, despite his belief, he isn't one.

.. is that similar to Islam qualifying as a protected belief but, despite this, not every manifestion of this belief would be supported in law e.g. if a majority Muslim council passed a local by-law that every woman entering the town needed to wear a hijab, this would not be supported? So in other words, you're free to believe in it (it's WORIADS overall)... but at the point when you're impacting others, that's a no. Or have I got the wrong end of the stick re the law on what's WORIADS and what's not??

Also, if Upton can believe in it but can't force it on others as if it's true (a good thing), other than securing a legal right to wear a dress and grow your hair long, it's not worth a fat lot. But I guess that's how the law should be when it comes to protecting belief - effectively it's "you do you" in legal speak.

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That looks absolutely spot on to me. Your Islam illustration is perfect.

duc748 · 25/02/2025 16:32

if you've got a cock, and you believe you are a woman, that's not WORIADS. Or fucking well ought not to be, anyway.

TwoLoonsAndASprout · 25/02/2025 16:35

BonfireLady · 25/02/2025 16:26

Poop indeed. But the points you raised were great ones.

Perhaps all that's needed on the end of it is something like "I appreciate you believe that TWAW, so this isn't about men in women's spaces. But there are plenty of people that don't hold this belief. Can you imagine how it might feel if someone is insisting that you accept their belief as true... [insert belief example here that would resonate]

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Thank you! I wasn’t the one who made the points, (that was @GCEpileptic) but I agree, they were very good ones and raised some good talking points, particularly if you were talking with someone who was just “being kind” without engaging their brain.

My point was more that the true activist would have an answer - but then, they always do (cf, DU in response to everything NC said!).

But you’re right too - let’s not throw out the baby with the bathwater - all ways of getting this topic on the table should be, er, on the table!

SternlyMatthews · 25/02/2025 16:38

prh47bridge · 25/02/2025 14:45

The Regulations are a statutory instrument, not primary legislation. They have to be interpreted in line with current legislation. Yes, when passed they clearly referred to biological sex, but the law has changed. If we take the GRA at face value, a man with a GRC is a woman as far as the law is concerned, and may therefore be entitled to use the women's facilities even though that was not the intention of the Regulations. This is why it is important to win the current legal battles to clarify the law.

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I think some have argued that deeming provisions ('legal fictions') such as those in the GRA, are usually expected to repeal explicitly rather than casting a wide net, so can be taken as not over-riding the 1992 Regs, which themselves carry a 'no outstanding effects' (Changes) notice.
Still important to win the clarifying legal battles. (IANAL)

prh47bridge · 25/02/2025 16:44

SternlyMatthews · 25/02/2025 16:38

I think some have argued that deeming provisions ('legal fictions') such as those in the GRA, are usually expected to repeal explicitly rather than casting a wide net, so can be taken as not over-riding the 1992 Regs, which themselves carry a 'no outstanding effects' (Changes) notice.
Still important to win the clarifying legal battles. (IANAL)

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The "no outstanding" bit simply means that there are no textual amendments outstanding, i.e. that there have been no new laws or regulations that specifically amended these regulations. It does not mean that the meaning of the regulations is not affected by subsequent legislation. I'm not going to attempt an explanation as to how these things are interpreted other than to say it's complicated! I am as confident as it is possible to be that DU's belief he is a woman does not allow his employer to give him permission to use the female facilities. I am less confident of what the position would be if he had a GRC.

BonfireLady · 25/02/2025 16:46

NoBinturongsHereMate · 25/02/2025 16:31

I agree. GI belief is a mass of internal contradictions that fall apart the moment you actually look at them (which is why No Debate was so important). I don't see how it can possibly pass IV.

(Yes, most religions have a fair bit of logic fail - but they have 'God did it' as an excuse. GI doesn't have that get out clause.)

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True, but "I was born this way, it's not a choice" is similar to "god did it".

We're just used to not challenging religious beliefs head on, because we don't need to. Laws in the UK have settled out on this and we're used to rubbing along next to each other in society, accepting multiple different faiths and atheism without argument.

BonfireLady · 25/02/2025 16:49

TwoLoonsAndASprout · 25/02/2025 16:35

Thank you! I wasn’t the one who made the points, (that was @GCEpileptic) but I agree, they were very good ones and raised some good talking points, particularly if you were talking with someone who was just “being kind” without engaging their brain.

My point was more that the true activist would have an answer - but then, they always do (cf, DU in response to everything NC said!).

But you’re right too - let’s not throw out the baby with the bathwater - all ways of getting this topic on the table should be, er, on the table!

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Ah, oops!

Sorry @GCEpileptic re the comment appropriation fail!

NotAGentleReminder · 25/02/2025 16:54

BonfireLady · 25/02/2025 16:20

I agree. However, re point iv, I don't think transubstantiation or a refusal to have a life-saving blood transfusion are cogent and cohesive either. In fact I'd pick holes in all religions - I'm an equal opportunity atheist.

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Absolutely agree with the refusal of blood transfusion on religious grounds as I think doctors should be able to override parental wishes (or the child's wishes) in these situations (and have been legally allowed to, I think). Believing in transubstantiation does not seem to risk hurting anyone or infringe upon anyone else's rights, though, even if taken literally it makes no sense.
Thinking now about religious belief as a PC, in a case where someone was claiming discrimination on the grounds of their religious belief, it must get a bit complicated because surely it is the way the person is practising that belief that has to meet the Grainger criteria and not the entire doctrine of the religion that the person follows? So would someone claiming to have been discriminated against simply on the basis that he/she is a Christian, be regarded as having a belief that met the Grainger criteria if he/she practised the religion in a way that did not infringe upon the rights of others? And would someone who followed the same religion but claimed discrimination on this basis and had used his or her religious beliefs to behave in a way that did infringe upon the rights of others, not meet the Grainger criteria?
Or is it only philosophical beliefs that aren't recognised as religions that have to meet the Grainger criteria before they can be protected under the EA?

NotAGentleReminder · 25/02/2025 16:59

Just seen my last post cross-posted with PPs who have answered my question!

prh47bridge · 25/02/2025 17:00

NotAGentleReminder · 25/02/2025 16:54

Absolutely agree with the refusal of blood transfusion on religious grounds as I think doctors should be able to override parental wishes (or the child's wishes) in these situations (and have been legally allowed to, I think). Believing in transubstantiation does not seem to risk hurting anyone or infringe upon anyone else's rights, though, even if taken literally it makes no sense.
Thinking now about religious belief as a PC, in a case where someone was claiming discrimination on the grounds of their religious belief, it must get a bit complicated because surely it is the way the person is practising that belief that has to meet the Grainger criteria and not the entire doctrine of the religion that the person follows? So would someone claiming to have been discriminated against simply on the basis that he/she is a Christian, be regarded as having a belief that met the Grainger criteria if he/she practised the religion in a way that did not infringe upon the rights of others? And would someone who followed the same religion but claimed discrimination on this basis and had used his or her religious beliefs to behave in a way that did infringe upon the rights of others, not meet the Grainger criteria?
Or is it only philosophical beliefs that aren't recognised as religions that have to meet the Grainger criteria before they can be protected under the EA?

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The difficulty arises from conflating belief with actions.

If your belief meets the Grainger criteria, it is a protected belief. You cannot be discriminated against based on that belief. So, for example, if someone believes in transubstantiation, they cannot be dismissed, disciplined or denied promotion due to that belief.

If someone acts on a protected belief in a way that negatively impacts others, their belief remains protected but their actions are not. So if our believer in transubstantiation gives someone a wine transfusion when they need blood, they can be disciplined or dismissed based on their actions, notwithstanding the fact that the actions came from a protected belief.

TwoLoonsAndASprout · 25/02/2025 17:02

prh47bridge · 25/02/2025 17:00

The difficulty arises from conflating belief with actions.

If your belief meets the Grainger criteria, it is a protected belief. You cannot be discriminated against based on that belief. So, for example, if someone believes in transubstantiation, they cannot be dismissed, disciplined or denied promotion due to that belief.

If someone acts on a protected belief in a way that negatively impacts others, their belief remains protected but their actions are not. So if our believer in transubstantiation gives someone a wine transfusion when they need blood, they can be disciplined or dismissed based on their actions, notwithstanding the fact that the actions came from a protected belief.

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I need a wine transfusion after all this.

NotAGentleReminder · 25/02/2025 17:03

I've just had a read of the beginning of the GRA and it repeatedly uses 'gender' where it is referring to 'sex'. Which surely makes all this talk about gender being recognised as a belief in law redundant? No lawyer needs to argue it counts as a belief when it's already written into legislation as reality?
It's deliberately head-doing, isn't it?

BonfireLady · 25/02/2025 17:08

prh47bridge · 25/02/2025 17:00

The difficulty arises from conflating belief with actions.

If your belief meets the Grainger criteria, it is a protected belief. You cannot be discriminated against based on that belief. So, for example, if someone believes in transubstantiation, they cannot be dismissed, disciplined or denied promotion due to that belief.

If someone acts on a protected belief in a way that negatively impacts others, their belief remains protected but their actions are not. So if our believer in transubstantiation gives someone a wine transfusion when they need blood, they can be disciplined or dismissed based on their actions, notwithstanding the fact that the actions came from a protected belief.

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Thank you. This really helps to join the dots on how the courts are looking at it.

I think I need a wine transfusion myself now though, after all the grey matter I've just been exerting.

And this exact analogy fits perfectly with how Dr Upton has acted upon a belief. Hopefully the whole sorry mess of enforced belief is about to be blown wide open... the Supreme Court ruling on the GRA is effectively deciding this key point too i.e. how much power does that piece of paper (a GRC) have to force others to behave as if it's true?

BonfireLady · 25/02/2025 17:14

NotAGentleReminder · 25/02/2025 17:03

I've just had a read of the beginning of the GRA and it repeatedly uses 'gender' where it is referring to 'sex'. Which surely makes all this talk about gender being recognised as a belief in law redundant? No lawyer needs to argue it counts as a belief when it's already written into legislation as reality?
It's deliberately head-doing, isn't it?

Just seen this.

Yeah..... Fair point. Hopefully this means that the Supreme Court will say "change the GRA".....

Maybe they'll apply duc748's version of a Grainger test as part of this challenge back to the government? It seems simpler. Or better still, they will say it's completely unfixable, because it's conflated fact and belief in a way that can't be unpicked... so repeal it.

TriesNotToBeCynical · 25/02/2025 17:31

BonfireLady · 25/02/2025 17:14

Just seen this.

Yeah..... Fair point. Hopefully this means that the Supreme Court will say "change the GRA".....

Maybe they'll apply duc748's version of a Grainger test as part of this challenge back to the government? It seems simpler. Or better still, they will say it's completely unfixable, because it's conflated fact and belief in a way that can't be unpicked... so repeal it.

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An alternative, which wouldn't please everyone, would be to explicitly forbid GRC holders from using their new status to do things otherwise forbidden by the EA, perhaps with criminal penalties. Plus a bit of clarifying of the EA and H&S regs.

PersonIrresponsible · 25/02/2025 17:45

Slight change in tack, but I'm thinking about the hereinafter

Currently, DU and Fife share a legal team. Seems bit of a strategic own goal but here we are.

I know that each party to proceedings pays their own costs, but... obviously one powerful caveat is when orders have not been complied with to the severe detriment of one party.

This is likely the case here. Is everyone's bill just picked up by their insurers (backers!), plus whatever proportion of SP's legal fees might be allocated?

When/if it comes to compensation for SPs detriments, how will they calculate the proportion? I mean, will DU have actually put his hand in his ladybag and front up with some actual reality of the cash kind? (Assuming he's held jointly liable)

Or will the insurers/backers cover that too?

TriesNotToBeCynical · 25/02/2025 18:09

If a doctor has any sense they will have their own indemnity cover, because NHS employers are notorious for abandoning their staff if it suits them.

BonfireLady · 25/02/2025 18:46

TriesNotToBeCynical · 25/02/2025 18:09

If a doctor has any sense they will have their own indemnity cover, because NHS employers are notorious for abandoning their staff if it suits them.

Possibly a daft question (and definitely an ignorant one, as I'm neither in law or the medical profession) but would a doctor's personal indemnity insurance cover the costs of this type of legal case, if the NHS decides to part company with Upton? My assumption would be no, because this particular case isn't about medical negligence or harming a patient.

NoBinturongsHereMate · 25/02/2025 18:47

NotAGentleReminder · 25/02/2025 17:03

I've just had a read of the beginning of the GRA and it repeatedly uses 'gender' where it is referring to 'sex'. Which surely makes all this talk about gender being recognised as a belief in law redundant? No lawyer needs to argue it counts as a belief when it's already written into legislation as reality?
It's deliberately head-doing, isn't it?

But that is gender-as-synonym; not the same as a belief in gender identity.

NotAGentleReminder · 25/02/2025 18:51

TriesNotToBeCynical · 25/02/2025 18:09

If a doctor has any sense they will have their own indemnity cover, because NHS employers are notorious for abandoning their staff if it suits them.

In the UK, doctors must have medical indemnity insurance cover for clinical negligence claims in order to practise. As far as I'm aware, for individual doctors this medical indemnity insurance does not usually cover colleague bullying and harassment claims, but doctors with their own companies could take out additional corporate indemnity cover to cover employment tribunal costs. Happy to be corrected if I'm wrong!

NotAGentleReminder · 25/02/2025 18:52

BonfireLady · 25/02/2025 18:46

Possibly a daft question (and definitely an ignorant one, as I'm neither in law or the medical profession) but would a doctor's personal indemnity insurance cover the costs of this type of legal case, if the NHS decides to part company with Upton? My assumption would be no, because this particular case isn't about medical negligence or harming a patient.

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I have just been checking what my medical indemnity provider covers as I had assumed the same as you. And it doesn't say anything about covering bullying and harassment claims or employment tribunal costs.