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The watchdog first wrote to bosses at NHS Fife on February 21 to remind them of their obligations under the Equality Act 2010 around single-sex spaces, including a “duty to assess and review proposed new or revised policies or practices”.

That followed the first two weeks of the Sandie Peggie employment tribunal.

The nurse, who works in the emergency department at Victoria Hospital in Kirkcaldy, is suing the board and Dr Beth Upton after she was suspended for raising objections to the trans woman doctor’s use of a female changing room on Christmas Eve 2023.

Ms Peggie was suspended on January 3, 2024, after Dr Upton submitted a complaint alleging bullying and harassment.

The employment tribunal resumed last month after a five-month break. Just hours before it restarted, Ms Peggie was cleared of all four gross misconduct allegations following a separate internal disciplinary hearing.

In January, The Herald reported that Ms Peggie’s legal team had already requested a copy of any relevant assessments in August 2024 while preparing for the tribunal.

When asked “whether an Equality Impact Assessment or risk assessment was undertaken before the decision” to allow Dr Upton to use the female changing room, the health board simply replied: “No.”

In its initial letter, the EHRC pointed out that under the Equality Act 2010 and the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (as amended), public bodies have “a duty to assess and review proposed new or revised policies or practices”.

They also said the results of any such assessment must be published “within a reasonable period”, but that they were “unable to find this information on the NHS Fife website”.

The EHRC asked the board to provide “a copy of any equality impact assessment for any policies or practices relevant to the provision of changing facilities for staff, any information you have relevant to how you’ve kept those under review post-implementation, and details of any steps you are taking to ensure that the rights of different groups are balanced in the application of these policies or practices”.

After receiving no response, the EHRC wrote again to the health board a month later.

On July 23, NHS Fife assured the EHRC that it had “taken steps in several areas, including a full review and audit of changing, toilet and locker room facilities”.

Baroness Kishwer Falkner, chairwoman of the EHRC, said: “The policies and practices of all Scottish health boards must comply with the Equality Act 2010.

“Earlier this year we asked NHS Fife to provide us with information on the provision of single-sex changing facilities for staff and the rights of different groups in the application of these policies. At that point NHS Fife confirmed that no equality impact assessment was available.

“Undertaking an equality impact assessment of relevant policies or practices, and publishing the results, are requirements of the PSED Specific Duties in Scotland. We believe NHS Fife failed to meet these requirements and told them to carry one out immediately.

“NHS Fife has now confirmed that it has commissioned an equality impact assessment and anticipates it will be published by September 30.

“Since we first wrote to NHS Fife, the Supreme Court ruled on the definition of ‘sex’ in the Equality Act. The EHRC has been clear that all duty-bearers should be following the law, as set out in the judgment handed down on April 16. NHS Fife has assured us that it is following our advice to review the implications of the judgment for its policies and procedures, seeking specialist legal advice where necessary.

“We continue to urge NHS Fife to progress the corrective actions we directed without delay. These steps are essential to protect NHS Fife staff from discrimination and harassment on the basis of protected characteristics, including sex, religion or belief, and gender reassignment.

“We will continue to engage with NHS Fife and monitor its progress and the outcome of the measures it has committed to taking, to ensure compliance with the Equality Act and Public Sector Equality Duty.”

In February, the EHRC also wrote to Neil Gray, Cabinet Secretary for Health and Social Care, on the same issue.

On the Scottish Government’s role, Baroness Falkner said: “As the equality regulator, we will also continue to engage the Scottish Government on ministerial oversight of the provision of staff single-sex facilities across NHS Scotland.

“When we met with the Cabinet Secretaries for Health and Social Care and Social Justice on June 10, we emphasised that while health boards are responsible for their own compliance with the Equality Act, Scottish ministers have a responsibility to ensure their adherence with the Public Sector Equality Duty.”

A spokesperson for the health board said: “NHS Fife acknowledges the Equality and Human Rights Commission’s media release of August 13, 2025, and welcomes its continued engagement and oversight.

“We are committed to working constructively with the EHRC to provide assurance that we fully understand, and are meeting, our obligations under the Equality Act 2010 and the Public Sector Equality Duty. This includes considering the implications of the recent Supreme Court ruling and the EHRC’s interim guidance.

“A comprehensive review and audit of our facilities has been completed, and an Equality Impact Assessment is underway. This will be concluded and published by September 30, 2025.

“Our priority is to ensure that all NHS Fife policies and practices protect the rights of our staff and comply fully with equality legislation.”

Maya Forstater, CEO of human rights charity Sex Matters said: “This directive to NHS Fife is an unprecedented intervention from the EHRC and the kind of muscle that has been lacking from regulators across the board since gender ideology first took hold of public institutions.

“While long overdue, this is a clear instruction to NHS Fife – and in fact all employers – that it cannot get away with continuing to flout the Equality Act. 

“There have been relentless efforts to undermine the Supreme Court judgment since it was handed down, including organisations promoting the idea that it is difficult to understand, or that the rules protecting female-only spaces cannot be policed or should be up for negotiation. 

“This leads to women being subjected to bullying, harassment and discrimination if they stand up, as Sandie Peggie did, for their right to undress with dignity and privacy. 

“The EHRC is the Equality Act’s policeman and it has the power to hold employers, service providers and public sector bodies to account. Other regulators should also step up and do their job.”

The Scottish Conservatives said the news makes “abundantly clear” the position of the Chief Executive of NHS Fife is “completely untenable”. 

Their equalities spokesperson Tess White MSP said: “This damning directive from the EHRC confirms that, on top of being negligent, incompetent and biased, NHS Fife broke the law in relation to the Sandie Peggie case.

“It’s just one failure, and one revelation, after another. It’s abundantly clear that the positions of the Chief Executive and senior health board colleagues are completely untenable.

“The shameful admission from the health board confirms that Sandie Peggie was hung out to dry from the very beginning of this tawdry scandal simply for standing up for her rights as a woman.

“Fairness and accountability must prevail. Surely John Swinney and his SNP colleagues can no longer retain confidence in those in charge of this dysfunctional health board?

“The First Minister must clear out those at the top of NHS Fife and finally demand that it, and all other public bodies, upholds the clear and unequivocal Supreme Court ruling entitling women to single-sex spaces.”