It was a narrow win for Sandie Peggie in the employment tribunal against NHS Fife. But an depth reading of the judgment is favourable for transgender medic Dr Beth Upton.
The Herald has read all 312 pages of the employment tribunal's decision, with the Kirkcaldy nurse winning over her employment on harassment grounds.
But on discrimination and victimisation on the basis of her gender critical beliefs, all other claims were dismissed. It is too early to say whether her legal team will appeal.
Sex Matters, a key supporter of Ms Peggie through the tribunal, has already expressed disappointed at multiple aspects on the case.
Here are the biggest takeaways from the judgment.
Protected characteristics
In Ms Peggie's legal case, it was claimed that permitting transgender medic Dr Upton to use the female changing room would result in Ms Peggie being treated "less favourably" by her employer.
But the tribunal panel ruled this was not the case. It said that the fact there was any impact of Ms Peggie was "insufficient" for the claim of direct discrimination.
"The changing room was not provided in a manner that was involved inherently unfavourable treatment to a woman," the judgment said.
It adds that Dr Upton had the protected characteristic of gender reassignment.
The judgment forms a "balance" between the protected characteristic of sex for Ms Peggie and the gender reassignment for Dr Upton - a decision that is likely to cause significant issue with Ms Peggie's legal representatives.
Taking into account the For Women Scotland ruling at the Supreme Court in April, the tribunal also said it was not "inherently unlawful for a trans female, who is biologically male under the [Equality] Act to use a female changing room at work".
Trans prisoner comparison
One of the biggest issues of contention during this case was an alleged conversation about chromosomes and a comparison between Dr Upton using a female changing room and trans people being placed in the female prison estate.
Dr Upton told the tribunal the comparison had been deeply hurtful - although the exact wording of the dispute is contested.
The tribunal agreed. It concluded that Ms Peggie's comparison had been an "attack on the sense of identity" of the transgender medic.
It also said asking Dr Upton about "chromosomes" was a "clear invasion of privacy".
Read more:
- Sandie Peggie wins employment tribunal against NHS Fife - but not Dr Upton
- Live: Sandie Peggie tribunal judgment - latest news
- Full statement from 'delighted' Sandie Peggie after NHS Fife decision
The prisoner comparison was alleged to imply to the case of Isla Bryson, a convicted rapist who was placed in a female jail.
The tribunal said it was clear that Ms Peggie knew the prisons comment would be a clear reference to the convicted rapist.
It said: “It was to be expected that the second respondent would take that reference to be an allegation that the second respondent was also some for of sexual predator.”
Patient safety
The ruling was fairly damning on how NHS Fife handled its investigation against Ms Peggie.
One of the key points is how the health board dealt with additional patient safety complaints that emerged after the Christmas Eve 2023 incident.
The tribunal said it was “remarkable” that it took NHS Fife well over four months to notify Ms Peggie of patient care allegations.
She was told about an investigation on April 12, 2024, despite complaints being made in early January.
The tribunal also accused the health board of conducting its investigation with “no urgency".
The health board was also found to have harassed Ms Peggie by failing to revoke Dr Upton's right to use the female changing room until alternative rota patterns had been put in place. The Christmas Eve incident could have been avoided if it had acted.
Gender critical belief
While the ruling notes the Supreme Court judgment and notes that Ms Peggie's gender critical beliefs appeared "genuine and honest" that Dr Upton was a man, it said that it did not “lessen the impact” of her remarks of Dr Upton.”
It added: “It was in essence seeking to impose her beliefs on those of the second respondent”.
It would, the tribunal said, not have been such a “direct attack” on Dr Upton had Ms Peggie raised her beliefs formally with the health board of HR.
It also found that Dr Upton was “entitled” to view the actions of Ms Peggie as a “hate incident”.
Risk
The tribunal said there was "very far from sufficient reliable evidence" that a transwoman who is "legally and biologically male" is a "greater risk" to a biological woman "within a changing room environment at a workplace than another woman assigned female at birth".
It also found there was no evidence Dr Upton using the female changing room for any sort of “sexual purpose”. The medic was using it “simply to change before or after a shift”.
It said: “That was an entirely normal and unexceptional act, and had to sexual element to it of any kind.”
Share