Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton, following Employment Tribunal judgment - thread #59

[nauticant]

Judgment was handed down on 8 December 2025:

https://assets.publishing.service.gov.uk/media/6936ce28a6fc97b81e57436a/S_Peggie_v_Fife_Health_Board__Dr_Upton.pdf

Sandie Peggie, a nurse at Victoria Hospital in Kirkcaldy (VH), 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 resumed on 16 July and the last day of evidence was 29 July 2025. It resumed again over 1 to 2 September for closing submissions.

Following handing down of the judgment on 8 December 2025, on 11 December 2025, it was announced by Sandie Peggie and her legal team that they would be pursuing an appeal.

The hearing was live tweeted by x.com/tribunaltweets and there's additional information here: tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr-005 and tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr-bd6.

Links to previous threads #1 to #50 can be found in this thread: mumsnet.com/talk/womens_rights/5379717-sandie-peggie-list-of-threads-covering-employment-tribunal-and-afterwards

Thread 51: mumsnet.com/talk/womens_rights/5402652-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-51 1 September 2025 to 2 September 2025
Thread 52: mumsnet.com/talk/womens_rights/5403218-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-52 2 September 2025 to 4 September 2025
Thread 53: mumsnet.com/talk/womens_rights/5404208-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-53 3 September 2025 to 1 October 2025
Thread 54: mumsnet.com/talk/womens_rights/5418690-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-54 28 September 2025 to 21 November 2025
Thread 55: mumsnet.com/talk/womens_rights/5447019-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-55 19 November 2025 to 8 December 2025
Thread 56: mumsnet.com/talk/womens_rights/5456749-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-56 8 December 2025 to 9 December 2025
Thread 57: mumsnet.com/talk/womens_rights/5457132-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-57 9 December 2025 to 11 December 2025
Thread 58: mumsnet.com/talk/womens_rights/5458443-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-following-employment-tribunal-judgment-thread-58 11 December 2025 to 12 December 2025

If we accept the SC judgement, Upton should not have been in the female changing room

I'm obviously stupid, because I just don't see this as a given. I really really want to, but I can't.

It's certainly true for single sex services, because it's only by sex that you have permission to segregate services, and to admit men to a women's toilet vitiates adherence to the gateway condition that segregation by sex (which must mean biological sex) is necessary as a PMOALA.

But - we are not in a public service. We are in a workplace, and there's nothing in the section of the EA2010 that applies to workplaces that says discriminating by sex in a workplace environment is acceptable as a PMOALA. There are no gateway conditions to meet, no equivalent of the Schedule 3 exceptions to the "no discrimination on any PC" rule. You cannot discriminate by sex in a workplace - period - at least not in what facilities you offer to your employees.

When we're talking about a service, it's held that even if there's no obvious disadvantage (there are both men's and women's toilets, so nobody is at a detriment, and discrimination requires detriment) it's still discrimination because someone could argue they are at a detriment, but that's ok because of the schedule 3 exceptions. So far so good.

In a workplace, it clearly isn't inferrable that separate sex bathrooms are a detriment to either sex otherwise separate sex bathrooms in the workplace would be de facto unlawful - remember there are no permissive exceptions for sex discrimination for PMOALA in a workplace - there is nothing similar to section 29, Schedule 3.

So - if there isn't a gateway condition to providing separate sex toilets in a workplace - there's no possible argument that separating any other way than by sex vitiates the gateway condition. The reasoning why the only legal separation is by biological sex just doesn't work like it does for services.

That means that while separating by biological sex in the provision of toilets, changing facilities etc. is certainly legal, it may not be the only legal separation.

There are good arguments working outside the EA2010, like the workplace regulations, a requirement for consistency across bathroom provision, and probably some others. But I still can't see how anything that the SC said in FWS is relevant.

Somebody - please, knock down this reasoning.

Maybe they should be recorded by law.

As far as I can see - you are making no sense whatsoever?? Sorry. Maybe I am stupid.

Some attempts by 2 Labour MPs to square the circle

https://nitter.net/JohnSlinger/status/1999075349163102686#m,

https://nitter.net/RachelTaylorMP/status/1999059114102784175#m

I think forcing women to undress in the presence of men is sexual harassment.

it's subtle. Let me try to explain more succinctly.

In services: separate sex services are disadvantageous to some men / some women and are therefore would be unlawfully discriminatory without the schedule 3 exemptions, which (to take one example) say it's not discriminatory to provide separate sex services if "the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex." Because this special permission applies only to sex, that's the only segregation that's legal.

In workplaces, there are no gateway conditions that explicitly permit separation of toilets by sex. Workplace toilets aren't public services. The whole of schedule 3 is irrelevant. In a workplace you can't provide women less good facilities than men, for any reason. Period. Since you obviously are allowed to provide separate sex toilets, separate sex toilets cannot mean either men or women are disadvantaged, and aren't discriminatory (in the way they are when offered to the public). Workplace toilets don't need the special permission granted in schedule 3 that they would if they were open to the public.

Since it's legal to segregate by sex without special permission, you can replace sex by any other PC, or by no PC at all - all legal.

Sorry still not making sense. It must be me.

It doesn’t cover the harassment/hostile environment for women angle. Why are single sex toilets and changing rooms allowed in the workplace? Because it’s accepted that for people’s privacy and dignity, they are important. Why don’t TRAs campaign for mixed sex facilities? Because they don’t want them, they want to use the ones for the opposite sex.

Summary: the rules for what makes services unlawful are different to the rules that apply in workplaces. When you try to apply in detail the same reasoning that the only lawful segregation in public changing rooms etc. is by biological sex to what happens in a workplace, it doesn't work, because the rules are different.

That was because James VI of Scotland ( and I of England) was bonkers and believed witches were persecuting him.

But the workplace regulations specify that toilets need to either be single sex or unisex single room ones.

Here’s some legal commentary responding to your point @MyAmpleSheep

https://www.doyleclayton.co.uk/resources/insights/do-workplaces-need-to-provide-single-biological-sex-toilets/

Second, we can consider the purpose of the Health & Safety Regulations. Here, their purpose can be divined from their very name and the Directive which they were implementing, namely health and safety of workers. At various points in FWS, the Court recognised that females, as a biological sex class, had a health and safety interest in being separated from males as a biological sex class (see [185], [186], [213], [214], and [232] – [236])
For example, it said at [213]:

“A certificated sex interpretation would make paragraph 2(2)(b) unworkable: it would be impossible to identify “risks specifically affecting women” because the same health or safety risks would also naturally and inevitably be risks that affect trans men with a GRC who would be legally male on this interpretation (albeit biologically female) and therefore liable to be affected by the same risks”.

In other words, in order to properly identify and ameliorate risks which accrue to females as a biological sex class and satisfy the purpose of the Health & Safety Regulations in ensuring their health and safety, then – adopting the logic of the Court in FWS – we can conclude that women and men in the Health & Safety Regulations must have their biological meanings, lest the Health & Safety Regulations become incoherent or unworkable vis-à-vis their statutory purpose.

Because it’s accepted that for people’s privacy and dignity, they are important.

There's no right to privacy in a workplace. Everyone's privacy can be violated all day long, as long as it's done equally across all PCs.

Violating dignity is harassment. If dignity is important for women, it's also important for trans-identifying people too.

When it comes to separate-sex services, the PC of gender reassignment is explicitly given second place to sex: see Section 28 of Schedule 3.

But that's not the case in workplaces. Employers have to protect everyone's dignity. You can't protect women's dignity at the expense of trans identifying people's dignity. (Or vice versa, of course.)

I don't think the EA2010 is as much help as we would like, here.

But the workplace regulations specify that toilets need to either be single sex or unisex single room ones.

Yes. We need to use the workplace regulations. Alas FWS didn't explicitly say the same argument about the meaning of men and women carries over to the workplace regulations. We need a court to say what the workplace regulations mean what we think they mean. That hasn't happened yet. There's a chance a court may say it doesn't mean what we think it means. ET's are going to be unwilling to favour one side or another as to what regulations that they don't enforce mean.

The commentary from Doyle Clayton starts where I leave off. They don't even bother trying to say that the EA2010 itself requires separate sex toilets at work. Doyle Clayton says that equivalent reasoning used in FWS should carry over to the workplace regulations. "This has not (yet) been the subject of direct and explicit determination by the Court, but it is hard to see the courts or tribunals – in light of FWS – suggesting that the definition of men and women in the Health & Safety Regulations differs from the Act, i.e. it is biological for both."

Hard to see - but not a slam-dunk. And a first level ET (and probably the EAT) is not going to go that far. On the EA2010 only, which is the ET's bailiwick, and at the ET level we should probably expect to lose. As we have done, twice.

I think the expectation of dignity when undressing is a far more basic one, enshrined in decades of case law, than misgendering or whatever.

Ok, well you have your view, and others have theirs, as I posted. Not all legal minds agree with your take on this, clearly. Yours is similar to the GLP’s I think. I’ve never been complacent about any of these cases, I’m always wary, so I don’t need to be patronised. But I think the point made by Doyle Clayton that exactly the same issues apply in workplaces and the same reasons exist for separating by biological sex is a good one.

But I think the point made by Doyle Clayton that exactly the same issues apply in workplaces and the same reasons exist for separating by biological sex is a good one.

I also think the same (sociological) reasons exist for separating by biological sex in workplaces as in services. But Doyle Clayton (facially) and I agree the same legal arguments don't apply within the EA2010. The legal argument in workplaces has to come through the WR. I may be making a narrower point than you think I am, but I don't think a first level ET is going to be definitive on the WR.

I also didn’t think this ET judge would be, although I didn’t think he’d produce quite such a ridiculous judgment.

There’s a whole thread on that in Kelly v Leonardo

https://www.mumsnet.com/talk/womens_rights/5432466-kelly-v-leonardo-employment-tribunal-thread-4

Some key points

• Sex is foundational in Workplace Reg’s 1992 for privacy
• FWS talks about sanitary conveniences and why any form of certified sex or non biological access doesn’t make any sense
• Pregnancy & maternity are areas for positive discrimination under Equality Act Sch 22 - and the workplace Regs specifically concern themselves with pregnancy & nursing rest areas in relation to the toilets
• In general - there is indirect discrimination against women if men are allowed to use the toilets rather than women in the mens. This is because of what women need the toilet for and how they use it. We do everything from having our first periods to the menopause in there. Women give IVF injections to giving birth in there. We undress more extensively more often (jumpsuits, breast engorgement), all activity needs bottom half undressed. Range of soiling is different.
• Women are medically more likely to need privacy at toilet - higher significance of IBS and other hormonal responsive conditions.

I could go on and on

https://www.hse.gov.uk/pubns/priced/l24.pdf

This is the Workplace Regs & Approved Code for Practice.

For example see 238 and how disabled toilets need to be single sexed or mixed sex in sole locksble single room.

Male rooms have urinals, Women’s have sanitary bins. The distinction is biological. You won’t need urinals in women’s since they don’t have penises so can’t pee standing up. Likewise since men don’t have periods they don’t need sanitary bins.

Underpinned by Building Regs (see 2010) and other docs. All go on about importance of primacy of sex as reason to divide.

There’s the really specific rules in a construction doc - which set up number of toilets by sex and so on. Numbers of cubicles increase for women through the drafts as evidence ones that women need much longer time in toilets, and use them more often.

It’s all biological.

The decision is wrong plain and simple.

It's clear woman need protected space. That decision has already been taken by a court and a tribunal should have taken that as precident.

But the issue muddying the water for the tribunal may be compensation and hence the wrong decision.

Let's wait to see what an appeal court will decide...

Societal law on gender reassignment has been caught with its pants down, but it'll get there, we're already seeing sports policy change which is exactly right.

You are making my point for me. None of the (very valid) issues you raise hinges on a requirement to interpret the word sex in the EA only in a biological sense. In turn:

• Sex is foundational in Workplace Reg’s 1992 for privacy

Yes, in the WR. But privacy in respect of dividing employees by sex is not referenced anywhere in the EA work section. We have not achieved the necessary victory of establishing the reasoning behind a biological interpretation of sex carries over mutatis mutandis to the WR.

• FWS talks about sanitary conveniences and why any form of certified sex or non biological access doesn’t make any sense

The work section of the EA doesn’t mention sanitary conveniences. At least as far as the text of the EA goes, mixed sex toilets in the workplace are, prima facie, just fine.

• Pregnancy & maternity are areas for positive discrimination under Equality Act Sch 22 - and the workplace Regs specifically concern themselves with pregnancy & nursing rest areas in relation to the toilets

Positive discrimination is permitted in the EA. It’s not mandatory. And the WR are separate to the EA.

• In general - there is indirect discrimination against women if men are allowed to use the toilets rather than women in the mens. This is because of what women need the toilet for and how they use it. We do everything from having our first periods to the menopause in there. Women give IVF injections to giving birth in there. We undress more extensively more often (jumpsuits, breast engorgement), all activity needs bottom half undressed. Range of soiling is different.
• Women are medically more likely to need privacy at toilet - higher significance of IBS and other hormonal responsive conditions.

These are cogent and compelling arguments for women’s needs to be catered for in the workplace in ways that men’s needs don’t have to be. I simply point out that the structure of the EA doesn’t permit other people’s needs to be sacrificed to achieve that. If a group whose members share a protected characteristic can persuade the court that their needs are both genuine and are being sacrificed in order to achieve what women need, that is a problem for us. Please don’t shoot the messenger.

i still don’t see that it is clear cut that failing to rule DU could not be permitted to use the women’s changing room is an obvious failing to heed the lesson of FWS. Wrong for lots of other reasons. But not very clearly that one.

(Very very very hopefully) Gillian Philip ?

@MyAmpleSheep I am definitely not a lawyer, and not British at that. But I think the simple counter reasoning is Naomi's illustrious "peanut comparator". If you sell a bag of treats and you label it as peanut-free, then it cannot hold one single peanut. Not a trace. Period

That is, to me, a difference between Kelly and Peggie. NHS Fife and Upton never tried to say that the changing room was anything but a female changing room. And Upton, despite what they claimed, was not, is not, never will be female.

That is different from the question of whether the CR had to be female in the first place. Maybe (I wouldn't know, but it seems to be what you're arguing) it didn't. After all, you can sell some treats that do contain peanut. But since they chose to label it female, it had to be female only.

(from the previous thread) Am I the only one who thinks Protect-the-dollz is a GC (from here or elsewhere, I have no idea) trolling r/transgenderuk? 😁

It's not impossible. But, irrespective, he(she) performs an invaluable service for trans community, which is continually gaslit by their own TRAs.

It's worth pointing out that on the Peggie MN mega-thread, there were many highly knowledgeable posters who cautioned that the Upton case was more difficult to prove and would give a motivated judge more scope find against Peggie. No one expected the judgement to be so shoddy, but it's basic form was admitted as a possibility. Errors in reasoning and law, even when they imply a pro-GC conclusion, are quickly pointed out and usually gracefully accepted.

That realism is totally absent on the trans side which veers between hysteria, sneering contempt, and wish-casting all in an environment of enforced, lock-step political correctness.

So do you think that single sex in Workplace Regs means grouping of other sets?

Even in Kelly v Leonardo last week the Judge held that they found that toilets are single sex.

Just the error was she decided a cubicle was a room and that sinks in a single sex facility could be mixed sex.