It was late on December 24, 2023, at the Victoria Hospital in Kirkcaldy. Sandie Peggie and Beth Upton were looking forward to spending Christmas Day with their families after another frantic A&E shift.
Peggie, an experienced nurse, was experiencing a sudden and heavy period and feared that it had bled through to her scrubs. She entered the hospital changing rooms to find Upton, a biologically male doctor who identifies as female.
What was said between the pair is disputed, but there was a confrontation. Peggie expressed her discomfort with sharing changing facilities with a colleague she considered male and, within hours, a bullying complaint was lodged by Upton.
Peggie’s suspension from work would result in a fraught employment tribunal that quickly became one of the most contentious in British legal history. Her claim that she suffered sexual harassment and discrimination by being forced to share a single-sex changing room with Upton made headlines well beyond Scotland’s borders.
Hearings broke up in February and are due to resume on Wednesday, and issues of sex and gender will be at their heart.
The Supreme Court ruling in April that backed the “biological” definition of woman — ostensibly a big boost for Peggie’s case and the wider “gender-critical” cause — led to immediate calls for NHS Fife to throw in the towel. It has refused to do so, contributing to a legal bill of over £220,000 (and rising). There will now be another 11 days of drama at the tribunal hearing centre in Dundee.
Victoria Hospital in Kirkcaldy, Fife
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The tribunal is only one battle in a wider war between Peggie, who has had a previously unblemished 30-year career, and her employer.
Peggie, who was said to have been in a “confident and defiant” mood when she met MSPs at Holyrood last month, is understood to be all but certain to take more legal action against the health board if a separate internal disciplinary investigation, which remains ongoing, finds against her.
This centres on claims that Peggie misgendered Upton and put patients at risk by failing to communicate with the doctor, a senior colleague. Peggie says that Upton has fabricated the claims, but has been warned she faces the sack if the ruling goes against her. The hearing, originally scheduled in February, went ahead on June 25, it can now be reported.
The stakes are equally high for Upton if Peggie’s assertion that she made up potentially career-ending claims is vindicated.
The Kirkcaldy “changing room” case has become a focal point in the debate over single-sex spaces
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Michael Foran, who will become in September associate professor at the University of Oxford’s Faculty of Law, said the decision to run both cases in parallel appeared to have been a big “blunder” because evidence heard in the tribunal could be seen to prejudice the outcome of the disciplinary case.
During the tribunal, Jane Russell, the KC representing the NHS and Upton, launched what was perceived to be a character assassination on Peggie, suggesting that the nurse supported Donald Trump, had behaved like a “dog with a bone” and had been “haranguing this poor doctor” during the changing room showdown.
Russell also described Peggie’s verbal “attack” on Upton and suggested that it had been motivated by her “very strong views” about trans people.
Peggie’s husband, Darren, who was called as a witness, was confronted about racist “jokes” he had shared on Facebook. The suggestion at the tribunal that Peggie harboured bias against trans people, her legal team believe, prejudges the claim that she misgendered Upton.
Foran said that NHS Fife was now in such a position that if it exonerated Peggie at the disciplinary hearing, it would fatally undermine the case put forward by its KC in court. “If they exonerate her, and say she hasn’t engaged in any hate-based conduct, then the legal defence NHS Fife’s lawyers have been arguing in court falls away,” Foran said.
“If they find against her, then they’ll be sued again, because Sandie Peggie will be able to claim it wasn’t a fair process because NHS Fife has already said publicly ‘she’s guilty, she did this’. The way the tribunal case has been run makes the fact that Sandie is still under investigation a real problem for them.
“It just seems like a big blunder. Why would you launch this as your defence when she’s still under investigation? That baffles me.”
Neither has the Supreme Court ruling in April made NHS Fife and Upton’s position any easier. The overarching issue the court considered in the dispute between the SNP government and the campaign group For Women Scotland, was whether a gender recognition certificate (GRC) changed a person’s sex for the purposes of the Equality Act. The court found decisively that it did not.
Upton began transitioning only in January 2022, and because of the mandatory two-year waiting period could not have had a GRC at the time of the incident with Peggie.
However, in its reasoning, the court also affirmed that sex, under the law, was based on biology and it endorsed blanket exclusions from single-sex spaces on the basis of biological sex. Peggie believes that such a ban should have been in place at Victoria Hospital.
Foran said: “On a technical level, it might seem that the Supreme Court judgment is irrelevant, because the issue at stake was about gender recognition certificates and we know Upton didn’t have one. But the reasoning the court went through, the way in which it described and articulated the law, I think is going to be very relevant.
“It’s going to create a difficulty for the legal arguments Upton and NHS Fife are likely to be running. I’m struggling to see the best arguments for NHS Fife. It seems like there isn’t a very strong case, and it hasn’t got any stronger following the For Women Scotland ruling.”
Foran, whose work was cited by Britain’s leading judges in the Supreme Court ruling, said: “The court said that there are privacy concerns for trans people, they are entitled to protection from discrimination on the basis of gender reassignment. But there’s also all these other considerations — the privacy of women, the safety of women, the fair participation of women in sport.”
NHS Fife and Upton, meanwhile, are set to stick to their guns, despite concerns over the costs of the case and doubts over its prospects.
The options available to the board include arguing for a “novel” interpretation of 1992 regulations guaranteeing single-sex changing facilities at work, which would allow Upton to be counted as female.
Alternatively, the board and Upton’s lawyers could put forward a human rights-based case, arguing that Upton’s would be undermined if she were banned from women’s facilities. Both options are seen in legal circles as, at best, long shots.
Another expert said they expected the £220,465 cost of defending the case up to May 31 to “at least double” before it was finalised.
The health board confirmed on Friday that it had “accepted liability for any of the claims should they succeed against Dr Beth Upton”, potentially adding to the bill for taxpayers, and that it was also covering Upton’s legal expenses, which are included in the published sum.
At a regular meeting of the NHS Fife leadership with MSPs and MPs on March 14, attendees were taken aback by what they saw as complacency on the part of the board. Although the tribunal had dominated the headlines for weeks and carried clear reputational risks, senior figures were reluctant to engage on the case.
They made clear that there had been no changes to internal policies on access to changing facilities and even said that a “period of reflection” would follow the eventual judgment.
There seemed to be little realisation that if, as legal experts such as Foran expect, NHS Fife loses the case, calls for the leadership to stand down will become overwhelming.
Board members, whose remit is to hold the board to account, were not made aware of the case in the months after it had been lodged, it is understood. The quarterly meeting with local politicians that would have been expected to go ahead last month, the first after the Supreme Court judgment, was cancelled and has not been formally rescheduled.
Many of Sir Keir Starmer’s MPs, including a strong Scottish contingent, are taking an active interest in the case. Imogen Walker, who is married to Starmer’s chief of staff, Morgan McSweeney, spoke in the Commons on Wednesday to say that the Supreme Court judgment had provided “very welcome legal clarity”. She accused the SNP of meeting “clarity with chaos” and of making “an absolute mess” of their response to the ruling.
Imogen Walker
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One MP said: “Personally I find the case completely astonishing. It speaks to the SNP’s whole approach to gender issues and the extent to which it has taken hold in the public sector. Sandie Peggie’s case is the clearest example of how this niche ideology has taken over, even taking precedence over the law.
“If they lose this case, as they surely will, there will be serious questions of the NHS Fife leadership and the SNP government about how this was ever allowed to get to this stage. There will have to be accountability.”
Although the witness list has not been made public, the tribunal will hear from Isla Bumba, the equality and human rights officer at NHS Fife, whose advice Peggie’s managers relied upon after Peggie complained about Upton’s presence in women’s facilities. She had met Upton in the changing rooms twice before the Christmas Eve row.
Bumba, who is in her twenties and worked as a Covid contact tracer for two years after graduating in 2020 before landing the NHS Fife role, told Peggie’s line manager, Esther Davidson, that Upton had a “right” to use the female changing rooms because she “identifies as a woman”.
Bumba, who is paid between £50,861 and £59,159 per year, has described herself as a “support aid” to NHS staff and dealt with issues such as “staff [who] are not sure what the correct pronouns for someone are”.
Foran said the fact that NHS managers deferred to Bumba, rather than to lawyers, was “baffling” but spoke to a wider cultural issue in the public sector.
Other key witnesses include Kate Searle, an emergency medicine consultant, who was Upton’s line manager and agreed that she should use women’s facilities. Searle also received Upton’s complaint about Peggie’s conduct in the early hours of Christmas Day, 2023.
She has been accused of sending an email to consultants four days later, presenting Upton as the victim and Peggie as the “bully” before an investigation had been opened.
Angela Glancey, the clinical nurse manager who conducted the investigation against Peggie, which recommended disciplinary action, is also seen as crucial to the case.
Foran said: “What we’re about to see over the course of the next few weeks is the real kind of nuts and bolts of how this investigatory process actually ran. A few days into the first hearing, Sandie Peggie’s legal team discovered that there had been, in their view, a launched and then botched initial investigation, that they then restarted several months later.
“So there’s going to be a lot of scandal that comes with potentially trying to cover up bad processes and practices, and the slow unpicking of evidence to establish what happened.
“The big question is why managers went to a 27-year-old EDI lead with no legal experience to ask about facilities provided under the workplace regulations. That’s just baffling, so cross-examination about that will be interesting.
“If this case goes the way I think it will, it will be another ruling underlining what the law has always been. What that does is make it harder and harder for those who want to maintain these unlawful policies to hide in the ambiguity.
“Policies are going to change and there will be this slow turning of the wheel where organisations are going to be facing litigation, not from women who have been denied single-sex spaces, but from trans people who want access to them and claim a failure to provide that is discriminatory.”
• NHS Fife spends £220,000 defending Sandie Peggie tribunal
NHS Fife has hit out at “various speculative and inaccurate comments” it said had circulated about the case. On Upton’s legal expenses, it said it was defending the case “jointly” with Upton and that it would “normally be liable for any acts of its employees in the course of employment”.
A spokeswoman added: “As a respondent in a legal action, NHS Fife has no choice but to defend the case brought against it through the appropriate legal channels. We will continue to do so in a manner that is respectful of the judicial process and the rights of all involved.
“Furthermore, commentary suggesting that a separate conduct process has been pre-judged is unfounded. NHS Fife believes it has acted appropriately in terms of its disciplinary and legal procedures and does not wish to comment further on hypotheticals, or legal actions that have not been initiated.
“Estimates regarding future legal costs are speculative, and claims of organisational complacency, and that we have failed to act, we believe, do not reflect our position.
“NHS Fife holds regular briefings with local MPs and MSPs, with meetings scheduled and, where necessary, rescheduled to support maximum attendance and constructive dialogue. Any assertion that a follow-up meeting was ‘cancelled and not rescheduled’ is also misleading. The next cross-party briefing is currently scheduled for September after the summer parliamentary recess.
“NHS Fife has taken its responsibilities seriously at every stage and continues to review its policies and practices in line with national guidance, best practice, and organisational learning.
“We would also caution against making statements about the potential resignation of leadership. Such remarks are inappropriate and undermine the professionalism of those who continue to serve our organisation and the public.”