An employment tribunal brought by an NHS Fife nurse who objected to sharing a changing room with a transgender doctor has concluded its evidence with conflicting interpretations of how the supreme court’s landmark ruling on sex affects the case.
Sandie Peggie, who has worked as a nurse for more than 30 years, contends she was subject to unlawful harassment under the Equality Act when she was expected to share a changing room with Dr Beth Upton.
After closing submissions were heard on Monday and Tuesday in Dundee, the judge Sandy Kemp had been expected to begin his deliberations. Instead, the tribunal was thrown into chaos after a last-minute application from NHS Fife’s lawyers to amend their pleadings.
The tribunal began in February and reconvened in July to hear further evidence. It has been followed closely across the UK to see how April’s supreme court ruling that “woman” and “sex” in the Equality Act refer only to a biological woman and to biological sex should be applied in practice. It is likely to be used as a template for other legal actions.
The application by NHS Fife could delay the outcome for months while Kemp considers it, along with any resulting appeals. Peggie’s lawyer said the nurse was “in tears” at the prospect of further hearings.
The case centres around a disputed incident which took place in a changing room at Victoria hospital in Kirkcaldy on Christmas Eve 2023, after which Upton made an allegation of bullying and harassment, leading to Peggie’s suspension.
In July, NHS Fife confirmed Peggie had been cleared of the separate gross misconduct allegations after an 18-month internal process.
Summing up her case on Monday, Peggie’s lawyer Naomi Cunningham repeatedly referenced the supreme court case brought by the gender-critical campaign group For Women Scotland. She told the tribunal: “Trans women are men. That reality is enshrined in law.”
But Jane Russell KC, representing Fife NHS board and Upton, argued that the ruling “says that service providers – it doesn’t cover employers – can, but do not have to, exclude [trans women from single-sex facilities] by making use of the exceptions in schedule 3 of the Equality Act.”
She added: “There is no authority that says an employer must do this.”
Cunningham, who chairs the board of trustees for the gender-critical group Sex Matters, told the tribunal that excluding Upton was “the inevitable consequence” of the For Women Scotland judgment.
“Trans-identifying men who possess gender recognition certificates (GRCs) are for certain purposes deemed to be women. But without a GRC they are both legally and factually simply men,” she said.
Upton had no GRC and therefore “must be excluded” from women-only spaces, Cunningham added.
She described NHS Fife as being “in the grip of a delusion”, and said the board had “taken on gender identity belief as its institutional position”. It had then subjected the nurse to a “heresy hunt” when she challenged this, she said.
Russell said Peggie had faced disciplinary action not because of her gender-critical beliefs, but because of the “objectionable and inappropriate” way she expressed them. During the Christmas Eve altercation, Russell said Peggie had “repeatedly” misgendered Upton and that her reference to the convicted rapist Isla Bryson was “an outrageously harmful hurtful and damaging slur”.
“The claimant’s behaviour in confronting the young doctor in a professional setting in such a way and so unpleasantly is behaviour that ought not to be served protection of the Equality Act,” Russell argued.
As a mark of the significance of the case, which has already cost NHS Fife nearly £220,500, a number of national groups were granted permission to intervene, including Sex Matters and the trans-led advocacy organisation TransLucent.
Aspects of the case have played out in parallel on social media. Cunningham accused the board of seeking to “drive a wedge between [Peggie] and her lesbian daughter” after witnesses claimed she was uncomfortable with her daughter’s sexuality. Peggie’s daughter, Nicole, then went on social media to challenge this, stating that her mother had always been supportive.
And on Monday Kemp ruled after some legal argument that Upton’s birth name should be redacted from published submissions, only for that name to end up trending on X later in the day.
The Equality and Human Rights Commission has written to NHS Fife regarding access to single-sex facilities for staff on several occasions since the tribunal began, most recently in August, when it directed it to complete a equality impact assessment and apply the supreme court ruling “without delay”.
Tuesday was the conclusion of final submissions, but Kemp warned that he would need time to consider NHS Fife’s amendment application first so it would be “very difficult to say” when his judgment would be ready and that it would not be before November.