Partial win for gender-critical nurse in NHS Fife employment tribunal

A Scottish nurse was harassed by her employer after expressing gender critical views, an employment tribunal has found.

Nurse Sandie Peggie complained after encountering Dr Upton, who is a man who identifies as a woman, using the female changing rooms. She took legal action against her employer and Dr Upton and while the tribunal found that the Health Board had harassed her, her allegations of discrimination and those against Dr Upton were dismissed.

There will be a separate hearing to decide about any financial compensation as a result of the judgment. The Times have reported that an appeal is a “near certainty”, according to its sources.

A huge win

Sandie Peggie said she was “delighted” and “relieved” at the result, adding: “The last two years have been agonising for me and my family.”

Peggie’s solicitor Margaret Gribbon commented: “The tribunal’s finding that Fife Health Board harassed Sandie Peggie is a huge win for a tenacious and courageous woman standing up for her sex-based rights.”

But she also called parts of the judgment “hugely problematic for women”, saying it leaves “the onus on them to object when their privacy, dignity and safety are violated, when men are given access to single-sex spaces”.

NHS Fife released a statement acknowledging the judgment, concluding: “Our focus now is to ensure that NHS Fife remains a supportive and inclusive environment for all employees and our patients and to deliver health and care to the population of Fife.”

Balance

The ruling from Judge Alexander Kemp stated that NHS Fife had harassed Peggie by “failing to revoke the grant of permission to Dr Upton on an interim basis after Mrs Peggie complained” until different arrangements were made, by “taking an unreasonable length of time to investigate the allegations against her”, relating to spurious “patient care allegations”, and by telling her she was not allowed to discuss the case.

It mentioned that the judgment took into account the April Supreme Court ruling on the Equalities Act, but concluded that this “did not result in it being inherently unlawful for a trans female, who is biologically male under the Act, to be given permission to use a female changing room at work”.

The tribunal summary stated that a number of factors were “required to be weighed in the balance” including “the extent to which the trans person had changed physiological attributes of sex, how the trans person appeared to others”, and “the extent to which there were complaints from other staff”.

Judge Kemp’s ruling also said there was “very far from sufficient reliable evidence” to show that a man identifying as a woman in a workplace changing room environment was a “greater risk” than a woman in that space.

An inspiration

Maya Forstater, Chief Executive of women’s rights charity Sex Matters, said: “We are pleased that Sandie Peggie has won her claim of harassment against NHS Fife, and that the hospital trust was criticised for its terrible handling of the complaint against her.”

However, she continued that: “Overall we are disappointed in the tribunal’s approach, which sought to reach a spurious ‘balance’ between a woman’s right to undress with privacy and dignity, and the right of an employee with the protected characteristic of gender reassignment not to be discriminated against.”

The Women’s rights campaigner said: “Sandie’s bravery is an inspiration, but it shouldn’t require bravery for women to be able to say to their employers, clearly and in natural language, that male colleagues — men, in other words — have no place in spaces that exist for the safety, dignity and privacy of women.

Forstater called for the Health and Safety Executive to urgently provide guidance: “Employers cannot be expected to make complex human-rights determinations about whether particular men are allowed into women’s changing rooms, and then to wait and see if any individual women complain.”

‘Divorced from reality’

Susan Smith, Co-Director of For Women Scotland, the group that won the Supreme Court case, stated: “We cannot understand the presumption that the application of law is conditional on whether or not a woman complains. Women should not be placed in this invidious position.”

The Women’s Rights Network’s Executive Director Heather Binning said she was “dismayed” at statements in the judgment “that are clearly contrary to April’s Supreme Court ruling”.

Former MP Miriam Cates posted on social media: “The Sandie Peggie judgement is divorced from reality. Do you want your wife/daughter to be forced to strip naked in front of a man she doesn’t know? It’s not about statistical risk; it’s about the imbalance of power between men & women that every previous society has understood.”

‘A terrible judgment’

Joan Smith, former Chair of the Mayor of London’s Violence Against Women and Girls Board, gave her summary of the ruling in an article on Unherd: “Sex is ‘assigned at birth’. Women can hold gender-critical beliefs, but they should be careful about how they express them. Trans women are sensitive, and challenging them in a women-only space constitutes an attack on their ‘sense of identity’ and ‘psychological integrity’.”

She said the ruling is “a win for Peggie only in a narrow, technical sense”, concluding instead that it is “a terrible judgment” that displays bias against Peggie and her lawyers, adding: “It cannot be allowed to stand”.