Partial victory for nurse in NHS trans changing room row

A nurse who objected to sharing a women's changing room with a transgender doctor has won a harassment claim against NHS Fife, but other claims of discrimination and victimization have been dismissed.

Sandy Peggy was suspended from her job in the hospital's emergency department after she complained about Dr. Beth Upton—a biological male who identifies as a woman—using the women's locker room.

An labor court decision described four ways in which NHS Fife harassed Ms Peggy, but dismissed other allegations against the health board and all claims against Dr Upton.

Ms Peggy welcomed the decision and said the last two years had been “excruciating” while NHS Fife said it would take time to work out the details.

The employment tribunal held earlier this year was high-profile and controversial.

It was brought by Mrs Peggy, a nurse who has worked in the NHS for 30 years.

She refused to share a women's changing room with a transgender colleague at Victoria Hospital in Kirkcaldy and was suspended from her job in early 2024.

Ms Peggy said her experience amounted to harassment and is suing the health board and Dr Upton, citing the Equality Act 2010.

In a written judgment handed down on Monday, the tribunal found that NHS Fife harassed Ms Peggy in a number of ways.

It said that when she complained to her employers about Dr. Upton using women's locker rooms, the permit should have been temporarily revoked.

It said the NHS was to stop allowing Dr Upton to use the changing room until different working arrangements came into force – at which point they would not work together.

The tribunal also ruled that the health board spent an unreasonable amount of time investigating the claims against her and that officials were wrong to advise her not to discuss the case.

The health board's reference to unproven allegations that Ms Peggy was putting patients at risk was also found to amount to harassment.

However, Ms Peggy's claims of discrimination and victimization by NHS Fife were unsuccessful and were dismissed, as was her claim against Dr Upton.

A separate hearing will take place at a later date to decide on a “remedy” for Ms Peggy, which could result in her being awarded compensation.

Following the ruling, Ms Peggy said: “I am delighted and relieved that the tribunal has found that my employer, Fife Health Board, harassed me after I complained about having to share a women-only changing room with a male colleague.

“The last two years have been painful for me and my family. I will have much more to say in the coming days, once I have been able to properly reflect on the lengthy judgment and discuss it with my legal team.

“For now, I’m looking forward to spending a few quiet days with my family.”

In a statement to the media on Monday evening, Ms Peggy's legal representatives said that “due to the length of the sentence and the fact that it was only received at 10am” they did not intend to provide “substantive comment”.

However, they added that their “preliminary considerations” were that some aspects of the decision were “extremely problematic.”

An NHS Fife spokesman said: “NHS Fife recognizes that this has been a complex and lengthy process and commends the careful consideration of the case by Judge Kemp and the tribunal panel.

“The Employment Tribunal unanimously dismissed all of the plaintiff's allegations against Dr Upton and all of the allegations against the board except for four specific aspects of the harassment complaint.

“We will now take time to work through the details of the decision with our legal team to fully understand what it means for the organization.”

Scotland's First Minister John Swinney said the tribunal's decision in “this complex case” was important and that his government would consider “the overall issues that need to be examined”.

Mr Swinney told BBC News: “It is important that time is taken to review the decision, that is NHS Fife's role and of course the Scottish Government will consider any issues raised by the decision to advance public policy in this area.”

Asked whether he believed Ms Peggy was right to raise the issue, Swinney said that “individuals with concerns about their employment practices have the right within the law to express any concerns they have.”

Campaign group Sex Matters, which supported Sandy Peggy in the case, said it was very disappointed by the tribunal's approach.

Maya Forstater, the organization's chief executive, said it should have provided clarity to employers about single-sex spaces, and that should have meant giving them confidence that they would not allow trans women to use those spaces.

She added: “It is a travesty that a woman can be seen as misexpressing herself when she objects to finding a man in a women's locker room.”

Ms Forstater said there was an “urgent” need for the Health and Safety Executive to provide clear guidance to employers regarding toilets and changing rooms in workplaces.

However, discrimination lawyer Robyn Moira White, who works with Translucent, a transgender-led human rights and advocacy organisation, said the decision was a “very reasonable and considered judgement”.

She said the tribunal found that Sandy Peggy was stalking Dr Upton and not the other way around.

Ms White added: “He recognized that both transgender and gender-biased people have rights in the workplace and employers need to balance them.

“This shows that transgender people need to be properly accommodated in workplaces, be it toilets or changing rooms, and that can only be a good thing.”

The political debate over gender identity has raged in Scotland for many years.

Often it seems a little abstract or even theoretical. But the Sandy Peggy case provides a very clear example of real-life conflict on this issue.

It is based on access to a single sexual space and who has the right to occupy it.

Conservatives have seized on the case, blaming the Scottish Government and saying its push to introduce gender self-identification is ingrained in the country's public bodies and institutions such as the NHS in Fife.

The stakes were raised when, during the tribunal, the Supreme Court ruled on the definition of sex in the Equality Act, saying it meant biological sex.

But unlike what many expected, Ms. Peggy's victory was a narrow one: a victory of process rather than substance.

In fact, the ruling said the Supreme Court's decision does not “substantially” make it illegal or legal for a trans woman to use the women's locker room at work.

The result provides some cover for Scottish ministers who insist they are awaiting updated legislative guidance from the equality watchdog.

The tribunal's decision deals with the specific circumstances of one case at a Fife hospital, but some say it has confused rather than clarified a hotly contested area.

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