Admitting trans women to women-only spaces creates a risk women in rape crisis centres will be “gaslit” by biological males, an employment tribunal has heard.
The tribunal is hearing the case of Sandie Peggie, who was suspended by NHS Fife after complaining about having to share a changing room with Dr Beth Upton at Victoria Hospital in Kirkcaldy on Christmas Eve 2023.
The nurse 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, which is taking place in Dundee, is currently hearing closing submissions, having heard from all its witnesses before it was adjourned at the end of July.
Answering questions from the judge on Tuesday, Ms Peggie’s lawyer Naomi Cunningham said allowing trans women to use women-only spaces such as toilets and changing rooms would mean they would no longer be single-sex.
“If you permit one trans-identifying man, or have a policy you will admit a trans-identifying man to a women-only space, what you say to women who use that space is that sign on the door that says ‘women only’ cannot be trusted,” she told the tribunal.
Taken to an “extreme”, she said, this would mean women using a rape crisis centre after being assaulted by a man might find themselves speaking to a biologically male counsellor.
“If she’s fooled by a counsellor who appears to be female but is in fact male, that’s an extraordinarily cruel deception to play on her,” she said.
She continued: “Worse still… you have said to all the users of the rape crisis centre you cannot be sure. It’s probably a woman but it may be a man, you cannot be sure.
“I would suggest that’s an extremely sadistic form of gaslighting.”
Dr Upton’s lawyer Jane Russell KC pointed out that a “balancing exercise” was required under the Equality Act, and that the situation described would be the “last point” that somebody would be “lectured about equality”.
She also said the confrontation between Ms Peggie and Dr Upton on Christmas Eve 2023 was different as it involved people who already knew each other.
“This was a situation where the two people did know each other before the conflict arose,” she said.
“So it is not a question, like what Ms Cunningham says, in terms of someone being surprised, for example at a rape crisis centre.”
She also reminded the tribunal that Ms Peggie had “chosen” to confront Dr Upton “alone in the changing room at midnight, and in such an unpleasant exchange”.
On Monday the tribunal heard Ms Peggie had “repeatedly” misgendered Dr Upton during the confrontation, and caused her “gratuitous harm” by asking her about her chromosomes.
Ms Russell said the nurse also made a “clear and obvious” reference to convicted rapist Isla Bryson, which she described as a “hurtful, harmful and damaging slur”.
“We should be able to expect from our nurses, particularly experienced ones, that they demonstrate kindness, thoughtfulness and respect, particularly in professional settings,” Ms Russell said on Tuesday.
She also contrasted the characters of Dr Upton – whom she said was “universally praised” by colleagues – with that of Ms Peggie, whom she said held a number of “intolerant views”.
“The contrasting characters of the claimant and Dr Upton is one of the inconvenient truths that hinders the claimant’s case,” Ms Russell told the tribunal on Tuesday.
She said the nurse had made “racial slurs” and circulated racist jokes via text messages, and had referred to Dr Upton as “weirdo” and “it” – something she said “goes beyond mere intolerance”.
Yesterday Ms Cunningham said NHS Fife had been “in the grip of a delusion” in its “gender identity belief”, and that it had subjected the nurse to a “heresy hunt” when she challenged this.
“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 told the tribunal.
She also told the tribunal that trans women should be excluded from women-only spaces as they’re “still men” both legally and factually.
Yesterday a spokesperson for NHS Fife said: “NHS Fife will not be commenting on specific aspects of the closing submissions in the ongoing employment tribunal proceedings at this time.”
The tribunal has cost nearly £220,500 since it began earlier this year, but NHS Fife noted its liability is limited to £25,000 due to an indemnity scheme.
Judge Sandy Kemp said the panel would begin four days of deliberations on the case on October 14, and that the decision will be published in November at the earliest.
