NHS Fife tries to silence nurse - Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton - thread #26

[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 doubtful whether pubilc access for remote viewing would be reinstated but recent developments (as of mid May) suggest that this might actually become available again.

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
Thread 24: https://www.mumsnet.com/talk/womens_rights/5301295-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-24
Thread 25: https://www.mumsnet.com/talk/womens_rights/5318518-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-25

Well that's the problem with the PC of gender reassignment, isn't it? It's the only PC which requires other people to believe in a belief system. It actually impinges on the lawful rights of others.

If someone's gay, it doesn't require anything from me. If someone's a Muslim, doesn't impact me. But if someone believes they're a woman when I know they're a man, their belief impacts on my lawful rights, if they come into the women's changing room.

I'm allowed to say god doesn't exist, though other people believe he does. Am I allowed to say 'you're a man' to Dr Upton? How can Sandie exercise her lawful rights, both the right to a single sex space that is single sex (PC of sex). and the right to believe that sex is fixed binary and immutable (PC of religion or belief) without harassing Dr Upton?

The Supreme Court ruling established that those born male remain male, even with a GRC (which Upton doesn't have). So in law, he's a man. And unless you can point to a statute that says stating a fact is illegal, she was within her rights to say it, and to point out that he shouldn't be in the women's changing room.

I don't think the court will find that Upton should have been using women's facilities; I think it will find that was an act of harassment.

But it could find that Sandie Peggie was wrong ever to address Upton about it directly and that she harassed him by doing so. It might say that it was always open to her to take the matter up with the trust further (and through a tribunal if necessary) without ever complaining to Upton.

I'm not saying that the inevitable outcome - just that it's a possible interpretation of the way section 26 of the Equallity Act 2010 is worded.

And if the Tribunal finds that Upton was harassed, that validates some or all of the trust's suspension and disciplinary measures.

Surely it would be impossible to maintain women's single sex spaces as single sex if people can not be permitted to say to transwomen that they're male.

But what would that mean for women if we were told that, no, men are not allowed in your spaces, but you are not allowed to mention that to them ?

It would also be unreasonable that if a woman needs to use the women's single sex changing rooms now, and she is unable to because there's a male person in there, that she cannot assert her rights, and instead has to trigger a review process that might come back and tell her that, actually, the Supreme Court judgment was correct, several days or weeks down the line.

He's got some balls, that's true

If you're the person or organization responsible for giving or denying permission for someone to use a space then unarguably you can say to a transwoman whether they can or can't use that space and also the reason why. Otherwise as you point out it wouldn't be possible to maintain a single sex service.

The question that's not so clear cut to me is whether a user of that space - who doesn't have the authority to allow or deny entry - can raise the matter with another user directly in an attempt to make that other user leave.

It also occurs to me that the batshittery of Upton's clinging to the "I'm a biological woman" line is just the manifestation of a legal tactic. Regardless of what he actually thinks, If so much as a chink in the "I'm a woman" armour appears in court then it damages the argument that it was reasonable for him to feel harassed, and the whole case goes out of the window. The more unreasonably (to the observer) that he sticks to the line, the more "reasonable" it becomes that he felt humiliated or that his dignity was violated.

It’s all disconcertingly vague isn’t it.
“I am a woman because I feel like one”. What does feeling like a woman mean, or living like a woman mean? Without resorting to sexist stereotypes?

You can draft legislation for something you can’t define, which is where this all unravels and TRAs find they’ve done ‘their community’ (in quotes because I don’t believe they represent all trans people) more harm than good.

It’s more about the manifestation of the belief I think? So Sandie is entitled to state her belief without it being considered de facto harassment. The question was/is whether her statement constitutes harassment in this case - versus merely Upton’s presence in the changing room being harassment of the female staff…

ETA NHS Policy was that Sandie stating what she did was classed as harassment of Upton. She admitted that according to that policy she had harassed him. However the Tribunal has to consider whether that policy is lawful? And whether fair - if it also allows males in female changing rooms?!

She can state her belief (for example in a letter to her employer complaining about his presence), but can she state it directly to his face and in such a circumstance?

Alternatively the ET can rule that the "circumstances" of the case make it unreasonable for him to have felt harassed.

I think it would be a very poor precedent if women were silenced from complaining (directly) to a man in a female single sex space. I can also see it as being a point of law taken to appeal whichever way it's decided in this tribunal.

I think it’s been discussed here several times - in normal circumstances if Sandie had said “you’re a man” regularly to Upton during their normal, professional, interactions in the course of their duties, then that would be harassment. Making the observation during a discussion about Upton’s inappropriate use of a single sex facility is not harassment in the view of the ordinary woman on the Clapham Omnibus.

DrU is a woman because he uses women's spaces. Sandie uses women's spaces because she's a woman. Only one of these is valid

Here's my attempt to collapse my own argument:

Regardless of what Upton's belief about his social sex is, he was never in any doubt about his legal sex - what was recorded on his original birth certificate. Had he been under the misapprehension that his original birth certificate said he was "female" then that would be a mistake of fact, and he could reasonably be offended to be called male. However - it was his understanding of what the law took to be the difference between male and female - which the SC recently clarified for EA purposes - that was mistaken (or 'a delusion') and a misunderstanding of the law was not a "reasonable" reason to have felt harassed.

Can I add: I think the fact that there's no definition of "woman" or "man" in any law is a strength of the British legal system. Whether an individual is male or female is a finding of fact that's open to a court to decide in any individual case. In Corbett vs Corbett it was held that factors present at birth, gonads, chromosomes and genitals were the determining factors. If someone's birth certificate says female but they are male based on some combination of gonads, chromosomes and/or genitals that were present but not detected at birth it's still open for the court to find them to be male. However unless they can make that argument then the (original) birth certificate stands. Others see the flexibility of the lack of a statutory definition as a weakness. I see the flexibility of having a set of characteristics to take into account but leaving it to a judge to make the final decision in any difficult case as a strength.

But hadn't she already discussed the problem with her line manager and not got anywhere? Or have I got the timeline wrong?

She had. But the ET might take a "two wrongs don't make a right" approach. It could say (I hope it doesn't) that the right thing to do was to withdraw from the changing room without comment (I know when she did this, it was argued as harassment- I'm sure that will fail) and complain further to her manager's manager, HR, or eventually a legal challenge to the trust's decision to permit Upton to use that facility.

I don't think that would be reasonable.

For comparison, an employer only has to make reasonable accommodation for people with disabilities, and a court could decide that they can't reasonably make any accommodation at all.

Similarly there is no right to paid leave on religious holidays that don't fall on bank holidays, which is much less convenient for people who aren't Christian, but employees just have to live with it.

Given that the court permitted sexed pronouns for Dr Upton, I think they can understand why it is sometimes necessary to be clear about sex.

it's a question of who can be clear about sex and when. In conversations between employers and employees for management purposes? For sure. In conversations directly between colleagues and co-workers outside the chain of management? Less certain. What makes this an interesting test case is the "direct" conversation about the sex of one party occurred within the circumstance of harassing behaviour going directly the other way. I'm sure that will play a big part in the judgement, but not sure what the outcome will be.

Wouldn't it cast an interesting light on the validity of TRA claims along the lines of "I'm a trans woman who's been using the female toilets for years and nobody has complained to me about it" if it was held that any such complaint was unlawful?

This discussion reminds that of the explanation of the Maya Forstater successful appeal where it was claimed that the judgment meant that of course she could hold all of her objectionable views in her head but she wasn't allowed to manifest them, for example by stating what she thinks. To do so would inevitably involve harassment of trans people.

The judgement there is exactly relevant. Quoting from the appeal judgement:

"This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given case. "

And so here we are. I hope the Tribunal will come to the sensible decision. But.

There's a difference between Sandie being in a team handover and saying 'you're a man though. Blokey blokington' every time Upton spoke (which she didn't do), and Sandie in the women's changing room stating that the issue she had with Upton being there was that's he's a man. The first would clearly be harassment, she'd no reason to point out he's a man in team handover, which is a mixed sex activity; but his being a man was central to the issue in the single sex changing room.

...saying ... Blokey blokington' every time Upton spoke (which she didn't do),

Just to add that harassment doesn't required repeated conduct. A single occurrence is enough.

Surely the fact that Sandie was having a heavy period and flooding so needing a female single sex space so she could change in privacy means her stating DrU was a man is reasonable.

Sandie had in other settings respected DrUs gender so this is not a case of repeated misgendering but a one off in a place where legally (thanks SC) DrU did not belong.

To answer other posters DrU stated under oath they had suffered misogyny!

@nauticant It would also be unreasonable that if a woman needs to use the women's single sex changing rooms now, and she is unable to because there's a male person in there, that she cannot assert her rights, and instead has to trigger a review process that might come back and tell her that, actually, the Supreme Court judgment was correct, several days or weeks down the line.

This is the crux of the issue. My thinking is the following: gender reassignment is a protected characteristic. Even though Dr. Upton didn't possess a GRC there are likely residual rights to non discrimination and the court has laid out that in some contexts aggressive misgendering can be discriminatory or otherwise hostile. But if you access sex segregated space you wave your right to privacy with respect to sex and in fact your unlawful presence itself might be grounds for sexual harassment. The SC ruling is clear that women have a right to object to a man in a women's space, the question is whether the manner in which Peggie objected is (sufficiently) contrary to NHS processes that she could be reprimanded. I would argue that the presumptive hostility of Dr. Upton being in that space would be a mitigating factor even if Peggie was in breach of a defined process. And it's not clear that she was in breach of lawful process since NHS Fife's policy itself was 1) unlawful, 2) under specified with respect to handling complaints and 3) improperly administered.

Dont forget he “put his big girl pants on”, and went back in despite being told by her of her objections. That is harassment.

As is taking notes about her whereabouts, which he intended to use.