The NHS is attempting to ban a nurse from referring to a transgender doctor as a man, even though the legal battle between them hinges on her belief that the doctor is one.
A lawyer acting for NHS Fife urged the judge at Tuesday’s preliminary hearing to impose an order that would prevent Sandie Peggie and her legal team from using male pronouns or terminology to refer to Beth Upton – a biologically male doctor who identifies as female – in an employment tribunal case beginning next month.
Jane Russell, who’s also acting for Dr Upton, claimed that “gratuitous misgendering” from Ms Peggie and her lawyers had already caused “pain” and “harm” to her client. She further claimed that allowing this to continue would amount to “state-sanctioned harassment”.
The case centres around three incidents in 2023 when Ms Peggie encountered Dr Upton in the female changing rooms at Victoria Hospital in Kirkcaldy. The nurse objected to this due to her belief that Dr Upton is male and therefore should not have been in women’s facilities.
On one occasion, Ms Peggie was wearing only a bra and trousers. On the third, there was a confrontation between them in which Dr Upton said “[I have] as much right to be there [as you]”.
The row led to Ms Peggie being suspended from work and investigated for bullying. She is now suing for discrimination and harassment.
In a rare move (as we reported here), NHS Fife and Dr Upton originally made a formal request that the hearing against them should take place behind closed doors, with the identity of both the doctor and the hospital remaining secret. Their application was empathically rejected by Judge Antoine Tinnion, who ruled that there was “a wholly legitimate public interest” in the case. (Welcoming the news, Ms Peggie made the memorable remark: “Changing rooms are a place where we expect privacy. Courtrooms are not.”)
At Tuesday’s hearing, Ms Russell said it was “simply a matter of courtesy” to use a person’s preferred pronouns. “I’m afraid the way the claimant and her representatives are conducting this case,” she told the court, “is a form of activism that in my submission is contributing to a climate of hostility and hatred towards trans people, which is actively harmful and has actively harmed the second respondent [Dr Upton]. It shouldn’t be allowed.”
Ms Peggie’s lawyers said they were not seeking to “police” their opponents’ language by forcing them to use male pronouns, but would like the court itself to refer to Beth Upton in gender-neutral terms, as “Dr Upton” or “the second respondent”. They branded the attempt to restrict their own language as “wholly unreasonable”.
Ms Peggie says that when she first met Dr Upton in August 2023 she “believed she was speaking to a man” and that the hospital’s patients also thought the medic “looks like a man”.
Dr Upton denies that it’s obvious she’s transgender and has said not all the staff at the Victoria were aware of it.
Naomi Cunningham, representing Ms Peggie, said: “This question of whether Dr Upton is a woman, in any meaningful or salient sense, is right at the heart of the claimant’s case.
“The claimant says he’s not a woman, he’s a man, and that’s why he shouldn’t have been in the female changing rooms.
“The claimant can’t put her case, clearly and forcefully, without using correct-sex pronouns, as opposed to preferred pronouns.
“We don’t seek to police Ms Russell’s language. They are entitled if they wish to use preferred pronouns, even if they are counterfactual.”
Judge Sandy Kemp said he would issue a ruling on the issue of language in the coming days. The full 10-day tribunal is due to begin on 3rd February.
