NHS Fife tries to silence nurse - Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton - thread #24

[nauticant]

Sandie Peggie, a nurse at Victoria Hospital in Kirkcaldy (VH), has brought claims in the employment tribunal against her employer; Fife Health Board (the Board) and another employee, Dr B Upton. Ms Peggie’s claims are of sexual harassment, harassment related to a protected belief, indirect discrimination and victimisation. Dr Upton claims to be a transwoman, that is observed as male at birth but asserting a female gender identity.

The Employment Tribunal hearing started on Monday 3 February 2025 and was expected to last 2 weeks. However, after 2 weeks it was not complete and it adjourned part-heard. It is planned that it will resume on 16 July and the last day of evidence will be 28 July and then there will be 2 days of submissions from counsel meaning that the hearing will end on 30 July.

The hearing commenced with Sandie Peggie giving evidence. Dr Beth Upton gave evidence from Thursday 6 February to Wednesday 12 February.
Access to view the hearing remotely was obtainable by sending an email request to [email protected] headed Public Access Request (Peggie v Fife Health Board) 4104864/2024 and requesting access.

However, as a result of problems with the livestreaming, apparently caused by a very large number of observers, remote public access to the hearing was suspended on Tuesday 11 February. It was suggested that it might be reinstated at some point but don't count on it.

The hearing is being live tweeted by https://x.com/tribunaltweets and there's additional information here: https://tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr. This also has threadreaderapp archives of live-tweeting of the sessions of the hearing for those who can't follow on Twitter, for example: archive.is/xkSxy.

An alternative to Twitter is to use Nitter: https://nitter.poast.org/tribunaltweets

Thread 1: https://www.mumsnet.com/talk/womens_rights/5186317-nhs-fife-tries-to-silence-nurse
Thread 2: https://www.mumsnet.com/talk/womens_rights/5267591-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-thread-2
Thread 3: https://www.mumsnet.com/talk/womens_rights/5268347-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-3
Thread 4: https://www.mumsnet.com/talk/womens_rights/5268942-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-4
Thread 5: https://www.mumsnet.com/talk/womens_rights/5269149-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-5
Thread 6: https://www.mumsnet.com/talk/womens_rights/5269635-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-6
Thread 7: https://www.mumsnet.com/talk/womens_rights/5270365-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-7
Thread 8: https://www.mumsnet.com/talk/womens_rights/5271511-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-8
Thread 9: https://www.mumsnet.com/talk/womens_rights/5271596-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-9
Thread 10: https://www.mumsnet.com/talk/womens_rights/5271723-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-10
Thread 11: https://www.mumsnet.com/talk/womens_rights/5272046-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-11
Thread 12: https://www.mumsnet.com/talk/womens_rights/5272276-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-12
Thread 13: https://www.mumsnet.com/talk/womens_rights/5272398-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-13
Thread 14: https://www.mumsnet.com/talk/womens_rights/5272939-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-14
Thread 15: https://www.mumsnet.com/talk/womens_rights/5273119-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-15
Thread 16: https://www.mumsnet.com/talk/womens_rights/5273636-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-16
Thread 17: https://www.mumsnet.com/talk/womens_rights/5273827-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-17
Thread 18: https://www.mumsnet.com/talk/womens_rights/5274332-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-18
Thread 19: https://www.mumsnet.com/talk/womens_rights/5274571-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-19
Thread 20: https://www.mumsnet.com/talk/womens_rights/5275782-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-20
Thread 21: https://www.mumsnet.com/talk/womens_rights/5276925-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-21
Thread 22: https://www.mumsnet.com/talk/womens_rights/5280174-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-22
Thread 23: https://www.mumsnet.com/talk/womens_rights/5285690-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-23

I think that the PC of GR applies from the moment anyone declares they are a different gender. Making that declaration would be seen as part of undergoing the process of reassigning your sex

Plus you have to avoid indirect sex discrimination claims generally - if your "gender" non-protected characteristic correlates with sex, such that you end up tending to favour one sex over the other, that's potentially problematic.

Real physical things like height hit that - you can't just discriminate on height arbitrarily, because that would be indirect sex discrimination. You need a reason to do it.

And if your "gender" thing strongly correlated with sex, such that you ended up excluding, say, most men, but not most women - that's potentially indirect sex discrimination too. You're back to having to find a reason why it's not arbitrary.

And that's something the judgment emphasised - arbitrarily constructed heterogenous groupings like "women who say they're women because they're female and men who say they're women because they want to be treated as female" do not serve a purpose, and hence don't clear the bar of being permitted (indirect) discrimination.

We use the same words for gender identity as we do for sex. However, if you say your association/service/whatever is for people who identify as women, say, that should be clear enough.

Note that I am trying to describe the law, not give my personal opinion. Personally, I think that any man who thinks he is a woman is deluded, as is any woman who thinks she is a man. I have to accept that the law doesn't agree with me.

This.

It's anyone who has had their gender reassigned or is in the process of doing so.

So it's a pretty broad legal definition.

Coukd the same legal rationale be used to provide a rape crisis centre for people whose gender identity is female?

The characteristic is defined as "proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex". If you don't propose to undergo, are not undergoing and have not undergone any such process, you are not protected. A man identifying as a woman is not necessarily proposing to undergo such a process.

Am I sure? Not until the Supreme Court makes a decision. But, based on the way the courts approach these things, I think they would hold that simply saying you identify as a woman is not enough to qualify for protection.

I suspect that a female gender specific association would be indirectly discriminating against men, most of whom would not have a female gender identity. So it would need a legitimate purpose for doing so. But does the legitimate purpose have to entail belonging to a protected group? The hypothetical organiser of the group may have the purpose of fostering friendship between trans women and women (I do not ask you to approve of this hypothetical purpose). Could that not be a legitimate purpose to allow the organiser to indirectly discriminate against men?

Why would it be discriminating against men? It is not excluding them because they are men (which is a protected characteristic). It is excluding them on the basis of their gender identity (which is not protected). Since gender identity is not protected, you can discriminate all you like. But yes, if the courts decided that gender reassignment includes gender identity, I think your hypothetical organiser's purpose may be enough to give them a legitimate reason for excluding men who do not identify as female.

It would be indirectly discriminating against men because most men would not qualify to join. Edit: it is not the purpose of the rule that makes it discriminatory, it is the actual effect of the rule.

Getting away from legal arguments, more good news...

NHS will be pursued if gender policies don't change, equalities watchdog says - BBC News

SerenaSemolena · Yesterday 12:46

And I d love to see the contents of the fragrant doctor's phone history!

Phone, or phoney? I'd like it if she settled for a full and frank, unreserved public apology and acknowledgement of how they've wronged her, on the front page.

That would include dropping the false allegations against her, in full, in perpetuity.

Reinstating her immediately and giving her back pay, with interest. A respectable cheque for compensation. A promise to investigate Dr. Upton O'Goode's phone metadata and to drum him out, when it turns out to be retrofitted.

Anything less and she should see it through to the bitter end.

The important thing there is "most men". It isn't discriminating against men because they are men. It is discriminating against them because they don't identify as women. That is not sex discrimination.

To be clear, if you start imposing other requirements that mean any man who joins must meet the requirements for protection under gender reassignment, you may have a problem. But simply saying that your association allows anyone who identifies as a woman to join is unlikely to be an issue.

How would gender reassignment for the EA be "policed"? So, if a transwoman enters a female toilet or changing room etc. and is asked to leave or is not allowed in, is it enough that they tell you they have have or will have gender reassignment procedures/drugs? Is medical proof necessary on the spot or what?

Based on the Supreme Court judgement, you can throw them out of the female toilet or changing room. They have no right to be in a single sex female space regardless of whether they possess the protected characteristic of gender reassignment.

It is discriminating against them because they don't identify as women. That is not sex discrimination.

Only if the not identifying as women has nothing to do with their sex.

But if they're not identifying as women because they're male, then that means you're doing sex discrimination.

I'm envisaging the form you'd need to get this legal - "For the purposes of this service, do you identify as a woman? It is important to note that whether you call yourself a man or woman in sex-related contexts, that does not apply here - the usage of 'woman' here is totally unconnected to sex, so do not answer this question based on your sex, but only on a genuinely sex-independent gender identity."

Take the example of minimum chest expansion for firefighters. That doesn't discriminate against women because they are women, but because it was supposed to be respiratory reserve qualification for firefighters. It was undoubtedly discriminating against women, few if any would qualify. But it was indirect discrimination because it wasn't rejecting them because they were women. If it had proved to be a valid physical qualification it would have been justified indirect discrimination, but still discrimination against women. As it turned out, women did not need that level of chest expansion to be fit enough to fight fires, and the qualification was removed. It is not the purpose of the discrimination alone that justifies indirect discrimination, but it has to be a legitimate purpose.

Indeed. The question is whether using "identify as a woman" is indirect discrimination against men. We would need the courts to make a ruling to be sure, but my view is that it isn't. We aren't dealing with a physical characteristic like chest expansion where there is a difference between men and women. We are dealing with a characteristic where there is a choice. Any man can choose to identify as a woman. Therefore we are not discriminating against men, either directly or indirectly, if all they have to do is say "I identify as a woman" and they will be allowed in.

'The NHS will be pursued if it does not follow new guidance on single-sex spaces, the chairwoman of the Equality and Human Rights Commission (EHRC) has said.
Along with other public bodies, the NHS will be receiving guidelines after the UK Supreme Court unanimously ruled a woman is defined by biological sex under equalities law.
"We've been speaking to the health service for an inordinately long time - we will now be asking them when they will be updating their advice," Baroness Falkner said.
Currently the NHS guidance says trans people should be accommodated according to the way they dress, their names and their pronouns. Under the ruling this would be scrapped.'

https://www.bbc.co.uk/news/articles/ce84054nqnyo

I'm not sure 'choice' can come into it. That would open a massive can of worms on religion and marriage protections - both are chosen characteristics.

But the fact we've spent several pagesarguing about it shows exactly why the SC made the judgement they did. As soon as you bring gender into any sex-related provision it becomes an incoherent, unworkable mess.

Therefore we are not discriminating against men, either directly or indirectly, if all they have to do is say "I identify as a woman" and they will be allowed in.

At which point, by the time you've made that clear, what's the point of making this so confusing and trying to basically cause collisions with discrimination legislation? Why don't you just ask everyone "do you want to come in?"

I still think you're in potential trouble here - you could say you've got a group for people who say they don't identify as Jewish. And you could claim that's not a problem, because anyone who is Jewish can come in - all they have to do is say "I don't identify as Jewish".

But forcing a particular protected group to lie to gain entry, while not requiring others to lie, is another form of discrimination.

You'd have to try to claim that "identify as" is meaningless, as is the word "Jewish" in this context, thus you're not asking anyone to make any sort of meaningful statement about themselves - it's just a meaningless phrase.

Every single attempt to push "gender" is going to have to rely on making it and the concept of "identity" more and more meaningless, and less and less connected to sex.

Can you combine protected characteristics i.e. disabled women? Or here biological sex (male) plus trans (gender reassignment)?

Lost track of why this is relevant just wondering...

When dealing with direct discrimination, choice is irrelevant. The fact you chose to be married (or not), the fact you chose a particular religion doesn't matter. When you are arguing indirect discrimination, that is another matter. To show indirect discrimination, you need to show that most people with a particular protected characteristic cannot have the characteristic on which you are discriminating. So, for example, a club for trainspotters doesn't discriminate against women because, although trainspotters are overwhelmingly male with very few females choosing to be trainspotters, it is open to any woman to become a trainspotter. Similarly here, it is open to any man to identify as a woman.

I accept that the courts may disagree with me, but the above is in line with their normal reasoning.

As an 'and', I don't see why combined characteristics would be a problem. It's easy to argue that disabled women have some specific needs that aren't shared with either non-disabled women or disabled men. Or that Muslim lesbians face a problem that is specific to people sharing both characteristics.

But you'd struggle to find a legitimate aim for an 'or' grouping that catered for people who are either women (regardless of disability) or disabled (regardless of sex). What's the shared need?

Even though identity is not a physical characteristic you're still batting with a sticky wicket if a man (not a transwoman) wanted to join the group. "Why don't you identify as a woman?" "Well, because I'm a man and most men identify as men" whereas most women identify as women. So your group still has indirect sex discrimination against men and in favour of women.

Choice doesn't come into it either. You could set up a group for women and red-haired men. But if a fair-haired man wanted to join he could argue sex-based discrimination because there's no hair-colour constraint on women. "Any man could choose to dye his hair red" isn't a justification.