A nurse has won the right to express her gender-critical beliefs in court by describing a transgender doctor she claims she was forced to change in front of at work as a man, following a preliminary ruling in her employment tribunal case.
Employment Judge Sandy Kemp rejected an NHS Fife request to impose an order on Sandie Peggie, which would have prevented her from using male pronouns or terms to refer to Beth Upton, a doctor who identifies as a transgender woman.
NHS Fife had argued that both the “sex and gender” of Dr Upton are female and that allowing ‘misgendering’ would amount to unlawful harassment. However, the judge ruled that compelling Ms Peggie and her legal team to use terms they consider “inaccurate” would be unfair.
Ms Peggie, who believes Dr Upton is male, claims the doctor should not have been in female changing rooms at Victoria Hospital in Kirkcaldy, where she says she encountered him on three occasions. She is pursuing legal action against both NHS Fife and Dr Upton personally in a case that could have broader implications for the access of transgender women to female single-sex spaces.
Judge Kemp further directed the tribunal to use “neutral” terms for Dr Upton as a matter of “standard practice”, citing concerns that panel members referring to the doctor as female could imply bias. However, he clarified that this guidance was not binding, and pronouns could still be used “where considered appropriate”.
The latest decision follows earlier failed attempts by NHS Fife to hold proceedings in private and to prevent Dr Upton’s identity from being disclosed.
“NHS Fife has tried hard to keep the case out of the news”, said Fiona McAnena, director of campaigns at Sex Matters, a group supporting Ms Peggie. “They also tried to prevent Sandie from giving her evidence clearly and truthfully. But this whole case is centred on the fact that [Dr Upton] is a male who uses a female changing room. The use of a female name does not make him female.”
Judge Kemp also suggested that misgendering Dr Upton could cause “pain and distress” but concluded that in the context of an employment tribunal, it would not necessarily amount to unlawful harassment. He added that the threshold for harassment could be met if male pronouns were used “gratuitously and offensively on a repeated basis”.
The judge then advised Ms Peggie and her representatives to “reflect” on whether it was “necessary or appropriate” to use male terms to refer to Dr Upton, even though such usage was not prohibited.
The case has drawn criticism of NHS Fife’s handling of the proceedings. The health board faced backlash for its attempts to have the case heard in secret and to restrict what Ms Peggie could say when giving evidence.
Joanna Cherry KC, the SNP MP and lawyer, said after hearings last week: “We don’t have compelled speech in Scotland.” She described NHS Fife’s actions as “a shocking waste of public money”.
Judge Kemp also rejected NHS Fife’s bid to ban Tribunal Tweets, a social media platform known for covering gender-related legal cases, from live-reporting updates. Speaking through its legal counsel, the Trust argued that the platform, which live-tweets cases, posed risks of presenting a “warped version of events”. In a telling comment that highlights the extent to which lawful free speech is constrained by equalities considerations within the NHS, the Trust attempted to justify the ban by claiming Tribunal Tweets content often appeared on forums like Mumsnet, where it attracted “objectionable and offensive” commentary.
However, Judge Kemp rejected this argument, ruling that Tribunal Tweets could continue posting updates, provided they are “fair and accurate”.
The tribunal’s 10-day hearing is scheduled to begin on February 3rd.
This case is the latest in a series of controversies where the NHS has faced accusations of prioritising gender ideology over safeguarding women’s sex-based rights and protecting workplace free speech.
The announcement of the Tavistock Clinic’s closure in 2022 followed significant criticism of its approach to treating young people with gender dysphoria, with campaigners pointing out that an overemphasis on affirming gender identities often sidelined broader safeguarding considerations.
Similar concerns have been raised within NHS workplaces.
In one case, a group of female nurses brought legal action against an NHS trust after biologically male staff members who identified as women were allowed to use female changing rooms. The nurses reported discomfort and claimed their concerns were dismissed, with management advising them to “broaden their mindset“.
Last year, Lewisham and Greenwich NHS Trust faced criticism after implementing a trans inclusiveness policy that mandated staff to apologise if they used incorrect pronouns for patients. Encouragingly, Health Secretary Wes Streeting condemned the policy, highlighting the tension between inclusivity initiatives and employees’ rights to free expression.
At the same time, NHS staff at United Lincolnshire Hospitals NHS Trust have faced pressure to comply with ideological positions on gender identity. Official guidance labelling the use of incorrect pronouns as “oppressive” has raised concerns about compelled speech, a theme echoed in Ms Peggie’s case, as staff have been warned that ‘misgendering’ transgender or non-binary individuals “could lead to disciplinary action under the Trust’s disciplinary policy and/or prosecution”.
There’s more on this story here.
