Boswell Today’s AI roundup of today’s submissions:
https://x.com/boswelltoday/status/1962507102393381368
September 1 | Morning Session | Peggie v NHS Fife & Dr Upton | Oral Submissions
🚨Words, Law, and the Reality of Sex
The tribunal opened with a quarrel over words, and as so often in this case, the words themselves carried more weight than mere labels. Naomi Cunningham, for Sandie Peggie, rose to insist that her client had the right to release her submissions in full. They were hers, she argued, protected by Article 10’s promise of freedom of expression. There was no prohibition against sharing them; no order had been made to stifle their publication. But Jane Russell KC, representing NHS Fife and Dr Upton, pressed for the erasure of Upton’s former name, describing it as gratuitous and harmful, invoking both dignity guidance and privacy law.
This was more than a question of courtesy. For Cunningham, the attempt to control how the tribunal might speak of Upton was emblematic of the wider battle: the steady erosion of reality under the pressure of etiquette. She dismissed Russell’s arguments as futile. Upton had no Gender Recognition Certificate; the name was already in the public domain. To pretend otherwise was to draw more attention to it, not less. When the judges returned after a short adjournment, they announced their decision. Upton’s former name would be redacted, not erased from history, but struck through in service of his Article 8 rights to privacy. Cunningham, taking instructions, agreed to make the edits swiftly.
It was a fitting prelude to her submissions, for the morning was to be spent on the clash between law and reality. Cunningham began from first principles. A man, however he presents, remains male. Single-sex spaces are lawful only if preserved for women alone. The Equality Act’s Schedule 3 was written to allow them, and their existence depends upon the exclusion of men. To admit males under the guise of gender identity was not to expand women’s rights, but to abolish them.
She reminded the tribunal of the Supreme Court’s decision in the For Women Scotland case, delivered earlier this year. A Gender Recognition Certificate, she pointed out, does not make a man into a woman for the purposes of the Equality Act. Even those with such certificates may lawfully be excluded from women’s spaces; without one, the point was unarguable. Dr Upton had never claimed to hold such a certificate. He could not.
The tribunal was led through a tour of authorities. Goodwin, Grant, Garçon & Nicot - all were confined to recognition of paperwork and status, none granting a right to enter women’s toilets or changing rooms. Croft v Royal Mail, once cited as a precedent for trans access, Cunningham dismissed as “a dead letter.” It was decided before the Gender Recognition Act, before the For Women Scotland ruling, and relied on the grotesque notion that women’s dignity might depend on a colleague’s surgical status. To place women’s safety on whether or not a man had been operated upon was, she told the panel, “truly unpalatable.”
Nor did Cook v Germany or similar European judgments assist the respondents. They spoke of health insurance and private life, but never of a right to undress among the opposite sex. No legal authority had yet declared that trans-identifying men must be admitted to female-only spaces.
Threaded through Cunningham’s argument was a deeper point about language itself. She warned that the tribunal must resist being swept into the linguistic trap laid by policy-makers and advocates. To call a man “she” was not a neutral courtesy, but a surrender of reality. “It is harder to hold on to the truth that transwomen are men if you are required to call them she,” she said. Across workplaces and institutions, the demand for linguistic conformity had become a tool for reshaping thought, until even long-serving nurses like Sandie Peggie could be cast as aggressors simply for speaking plainly.
By the time the morning adjourned, the shape of Peggie’s case stood clear. This was not a quarrel about etiquette but a defence of law itself. Women’s right to single-sex privacy rests on the recognition of sex as a fact, not a feeling. Admit men to women’s changing rooms, and they cease to be single-sex at all. Against the pressure of euphemism, against the fear of speaking truths now deemed impolite, Cunningham urged the tribunal to remember its duty: to decide on evidence and on law, not on fictions. And with that, the court broke for lunch - Cunningham’s submissions not yet finished, her arguments set to continue into the afternoon.