Trans women 'are still men', Sandie Peggie's lawyer tells employment tribunal

Trans women should be excluded from women-only spaces as they are “still men”, a lawyer representing nurse Sandie Peggie has told an employment tribunal.

Ms Peggie was suspended by NHS Fife after she complained about having to share a changing room with Dr Beth Upton, a trans medic, at Victoria Hospital in Kirkcaldy, on Christmas Eve 2023.

She was placed on special leave after Dr Upton made an allegation of bullying and harassment, and cited concerns about patient care.

Ms Peggie has lodged a claim against NHS Fife and Dr Upton, citing the Equality Act 2010, including sexual harassment, harassment related to a protected belief, indirect discrimination, and victimisation.

The tribunal is currently hearing closing submissions from both sides, having heard from all its witnesses before it was adjourned at the end of July.

Giving her closing submission to the tribunal in Dundee on Monday, Ms Peggie’s lawyer Naomi Cunningham told the tribunal trans women should be excluded from women-only spaces as they are “still men” both “legally and factually”.

“Trans women are men. That reality is enshrined in law,” she said, in a submission that included multiple references to the recent Supreme Court judgment on the definition of a woman under the Equality Act 2010.

She went on: “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.”

Ms Cunningham pointed out that Dr Upton “does not have a GRC, she’s never suggested that she does”.

Sandie Peggie objected to sharing a changing room with Dr Beth Upton (Andrew Milligan/PA) PA Media

She added: “Dr Upton, and any other man like him, not merely has no right to access women-only spaces. He must be excluded.

“That’s the inevitable consequence of the (Supreme Court) judgment in For Women Scotland,” she said.

She also said NHS Fife had sought to “punish” Ms Peggie for raising a complaint about sharing a changing room with Dr Upton.

“NHS Fife has subjected a nurse of 30 years’ unblemished service to a full-blown witch hunt to punish her for standing up for her right not to undress in front of a male colleague,” she said.

These included, she said, the health board subjecting Ms Peggie to a “character assassination” and “groundless smears”, and seeking to “drive a wedge between her and her lesbian daughter”.

Ms Cunningham added that the board had “attacked” Ms Peggie’s legal team, and told “countless lies”, and that its conduct had ben “censured” by two regulators.

She also took issue with an argument she said Dr Upton’s legal team had put forward, that NHS Fife had an “obligation to educate the claimant out of the bigotry she’s shown for refusing to take her clothes of in front of a male colleague”.

Ms Cunningham went on: “It’s at this point the respondent’s argument crosses the boundary from the point it’s simply wrong, to being morally repugnant.”

Neither Ms Peggie nor Dr Upton are expected to be recalled at the tribunal this week.

The tribunal has already cost NHS Fife nearly £220,500 since it began earlier this year.

Last month, NHS Fife was told by the UK’s equality watchdog to “progress corrective actions without delay” regarding single-sex spaces after the health board admitted it failed to carry out an equality impact assessment previously.

The Equality and Human Rights Commission (EHRC) wrote to NHS Fife regarding access to single-sex facilities for staff on February 21 after the tribunal was adjourned.

Baroness Kishwer Falkner, chairwoman of the EHRC, said NHS Fife previously admitted no equality impact assessment had been carried out and one is now expected around September 30, having been commissioned retrospectively.

On June 10, it held a meeting to reiterate that the Scottish Government has a duty to ensure public bodies comply after the UK Supreme Court ruling in April that the terms “woman” and “sex” in the 2010 Equality Act “refer to a biological woman and biological sex”.

The tribunal continues.