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

The ruling explicitly says that it is explaining what the law has always been, since it’s inception.

So NHS trusts (and every other badger) who have been following Stonelaw instead, have in fact been breaking the law.

If the ruling was after the actions of NHS Fife, then could it mean nothing?

I don't think so. This is clarifying what the law always meant, so it applies from the date the Equality Act was passed. So NHS Fife was in the wrong by allowing a man into a single sex changing room.

Lack of knowledge of the law is not usually a defence, although in all fairness no one knew what the hell it now all meant and it's taken a Supreme Court to go through it with a toothcomb and with all of its history to provide clarity.

The more culpable part was letting a political lobby train on practice and policy, without regard to duty of impartiality or care for other protected characteristics, or without checking those trainers' qualifications and knowledge of the law and equality or other characteristics beyond the one of interest to their organisation.

They have without doubt broken the law. There will be some mitigation in that the law was a complete pigs ear without guidance.

There will be some mitigation in that the law was a complete pigs ear without guidance.

And no one else in the better part of 15 years had enough gumption to say "Hang on, what does this really mean?" until the Scottish women were determined enough to pursue the matter?

Very fair question, I'm sure Naomi will ask that and many more difficult ones!

Not GRC, but I once held a volunteer position with a swimming club which was aiming to get Sport England accreditation. One of the long-standing coaches had been responsible for maintaining a register of coaching and DBS (then CRB) certificates. He had a lovely up to date schedule that he used to present to the committee with a list of coaches, expiry dates and all.

I needed the certificates themselves, which proved extraordinarily difficult. The coach was popular and the committee were reluctant to introduce sanctions when he repeatedly failed to hand them over, whilst some parents were outraged at my "harassment" of him. One mum shouted at me at a school event. Then one of the coaches, whose daytime job was with the police, mentioned that they had never been checked, even though a certificate number and date were on the schedule. I was lucky in that the sports officer in the local authority agreed something was off, and threatened to withdraw use of Council facilities unless he saw certificates.

Faced with an ultimation from the Committee, the coach walked. It turned out that senior people in neighbouring clubs and in sports body knew why this coach did not have certificates and why, but for confidentiality reasons could not tell us. Or even warn us. The onus was entirely on us to check. I assume that again if a transwoman coach were to want to use female facilities and indeed take on female chaperone duties, it would be up to volunteers within the club to negotiate around what they can and can't ask for.

It could be difficult. Get something wrong and there could be outrage. DBS, passport and other identity documents, and probably coaching certificates, might all show female. From memory you can't even ask for a "dead-name" on the DBS application. How do you challenge an assertion, even if the person is obviously biologically male? Fine if someone had had the foresight to ask for certificates at first hire, but volunteer run groups don't always have the knowledge.

At the time I think Edward Lord was some sort of advisor to the Amateur Swimming Association, and the abuse would have spread far beyond the outraged mums. The (wokish) Local Authority might also have decided to stay well clear.

This madness has been going on a long time. The judgement is extremely welcome but there is now a lot of basic and important safeguarding in sports clubs and in organisations like the girl guides that will need to be reviewed/rewritten.

Yes, lots to be done to put things right.

Even if this were true, I would argue that in effect single sex services like toilets are mandated in all buildings accessible to the public like pubs & clubs, theatres, art galleries, libraries, university student unions.

This is because of the twin effect of (a) the Licensing Act and the core objectives*, and (b) these organisations' own policies (esp their safeguarding policies).

Therefore, @NoBinturongsHereMate's assertion (and sorry if I've misattributed it) that

'There is no legal basis for providing a single gender service'

isn't necessarily incorrect in practice.

*The four core objectives of the Licensing Act are to prevent crime and disorder, ensure public safety, prevent public nuisance, and protect children from harm. These objectives are equally weighted and serve as the foundation for licensing authorities and licensees to operate.

I think the problem with 'single gender service' is that the EA2010 does not have any exemptions or exceptions for this, does it? We all know how hard it has been to get services to enforce 'single sex' which is an exception so on what legal basis would have have 'single gender services' without discriminating? I don't think it's possible. I very much hope it's not possible.

What all of this noise about defining two words ('woman' and 'sex') in one piece of law has shown me is how fragile our rights are. It's very scary.

There are certainly many situations where regulations, licence conditions or similar mandate provision of single sex facilities. In those situations, they are legally required. However, this conversation was triggered by a question about how the Supreme Court ruling affects situations where there is no legal requirement for single sex facilities. Some posters were arguing that they are now always compulsory. That is clearly wrong.

As the Supreme Court said, the first principle when interpreting legislation is that you look at the legislation and, unless otherwise indicated, you give the words their normal English meaning. The rules around provision of single sex facilities, single sex services, etc., in the Equality Act set out when it is acceptable to provide single sex services. They do not make it mandatory to provide single sex services in any of those situations. The ruling by the Supreme Court has no effect on the interpretation of those provisions. The courts therefore would not support an attempt to argue that such facilities are, in fact, mandatory despite the clear wording of the Equality Act and that failure to provide single sex services is automatically unlawful discrimination. There may be situations where, even though there is no statutory requirement, the courts would agree that single sex services/facilities are required, but there is no way they would make a blanket ruling that they are always required.

As you say, in many, possibly most, publicly accessible locations, single sex services are legally required. But this ruling by the Supreme Court makes no difference to any locations where single sex services are not legally required. It does, however, make it clear that, if you want to provide a single sex service and rely on the exemptions that allow you to do so, that must be biological sex. If you allow trans women to use your service for women, it is not a single sex service.

https://www.thecourier.co.uk/fp/politics/5223951/equalities-watchdog-pursue-nhs-fife-guidance-unchanged/

Just taking the opportunity to thank everyone for their many excellent and thoughtful posts, with a special mention to @prh47bridge for his expertise. I was interested in the debate over the WI and especially this:

In the WI case, since the only qualification for a man to join is that they are willing to say they identify as a woman, and WI don't ask any further questions or investigate to check that the person in question genuinely identifies as a woman, I think WI could argue that, as there is no actual requirement to be trans, any man can join therefore there is no discrimination

This rang a bell with me and, on checking the WI's own policy, the answer to the question 'Can male to female transgender people join a WI and attend WI events?' is:

Yes – anyone living as a woman is welcome to join the WI and take part in all WI activities. They should be treated in exactly the same way as all women who are part of your WI

But - Can crossdressers join the WI?

No – only those living as women can join the WI and take part in all WI activities

'Can men join the WI'?

No. The Women's Institute is based on the idea of bringing women together, providing them with educational opportunities and the chance to make a difference in their communities. Therefore, the WI is set up as an educational charity with a constitution which states that membership is only open to women

I’m pretty sure they’ve publicly doubled down on their stance when asked about eg Petra Wenham. Well, I know they have, because a sizeable petition from members was presented and they dismissed it out of hand.

(BTW I'm not a WI member, just driven to despair by the incoherent idiocy of all this)

I don't think the clarification of the Equality Act does provide any mitigation for NHS Fife, as Dr Upton doesn't / didn't have a GRC, so was always a man according to the law; there was no potential for him to be considered a woman 'for all purposes', as per the GRA. As such, they were always in breach of the law re SSS provision.

constitution which states that membership is only open to women

This raises a parallel issue for me. If an organisation states 'women' in its constitution or if a pub sticks a 'women' sign on its loo doors, and they actually mean gender not sex, then how far do they have to go to make this crystal clear?

You don't need exemptions or exceptions to discriminate on the basis of a non-protected characteristic. If you want to discriminate on the basis of age, you can only do so if there is an applicable exemption. If you want to discriminate on the basis of month of birth, e.g. by having a service for people born in May (without specifying the year), go ahead. Month of birth is not a protected characteristic so discriminate away.

Gender identity is not a protected characteristic unless the courts decide that gender reassignment includes gender identity. Therefore, provided you don't cross the line into discriminating on gender reassignment, you can discriminate on gender identity all you like.

I would agree it is incoherent idiocy. It may be legal, but it isn't sensible.

I think my concern is that this doesn't safeguard against those with bad intentions. And with the DBs willing to hide biological sex from employers, I'm concerned that this loophole will be exploited.

@prh47bridge I will thankyou and bow to your superior knowledge!

However what does this mean for organisations like the Girl Guides and WI.

If women or girls join what they perceive to be a single sex organisation but it's actually mixed (accepting trans) does that not equate to false advertising or something?

I see. Thank you. I may have been a bit too over-confident at how the SC ruling will change things for women. Guess we'll have to see.

It is a game changer. It stops trans individuals arguing that the Equality Act allows them to access single sex spaces based on their chosen gender. It stops the Scottish government counting trans individuals as women in attempting to achieve 50% female representation in certain situations. It means that providers of single sex services can confidently exclude trans individuals. It means that, where provision of single sex services is mandatory, they must be single biological sex. It means that you have a legitimate complaint if you find a man in the women's changing rooms or toilets.

It is, however, important not to read too much into it. If provision of single sex services is optional in a particular situation, this ruling does not change that. It is clear that sex discrimination refers to biological sex, so trans individuals cannot complain of sex discrimination if they are excluded from a single sex service, but it does not prevent service providers (or anyone else) differentiating on characteristics that are not protected.

Interesting

@prh47bridge if something like the WI or GG is open to women/girls plus those with a gender identity then would that not fall foul. It can't be claimed to be gender identity because a lot of women don't have one. They are using the SSE but allowing in one section of the opposite sex. Neither WI nor GG operate on gender identity but sex plus.

I just had coffee in my favourite café. The coffee was delicious, and I used their loo before I left. It’s a unisex loo with a decent lock on the door, clean and tidy, with a urinal discreetly placed in a corner. Do I have a problem with that? No. It’s an entirely sensible and adequate provision in such an establishment. But when I go to the railway station loos, or use the public toilets in town, I expect those to be clearly labelled for either sex and available exclusively for the sex so labelled.

I'm still a bit confused about the characteristic of gender reassignment.

How could anyone know if a TW is excluded from the protected characteristics in the EA, or is included, due to the fact the TW has undergone, or will undergo, or is in the process of gender reassignment?

I am going a bit off topic...my original post about loos was related to the relevant section of the Supreme Court judgement as it was suggesting toilets wouldn't necessarily be single biological sex.

I suppose you do usually have a sign if there's a male cleaner in the ladies loos although not great as if you have to go you have to go. Puberty is also shifting younger and you get parents who are reluctant to let boys go into the mens.

I support normal loo cubicles with the gap and I can't stand the generic mixed gender loos. In Australia large places like shopping centres you often have a women's, men's and unisex loos.

I think a third unisex option would be better for some families and safer for those who would otherwise be alone, as we are all aware sexual assault does happen in public toilets whether mens or womens.

Anyway back to Sandie?