Trans Changing Room Case Sandie Peggie v Fife Health Board and Dr B Upton

We wrote this article on changing rooms in 2024 and mentioned that if you allowed trans women to use a female changing room you may be sued. In late 2024 Mrs S Peggie, a nurse working in the Queen Margaret Hospital in Dunfermline for the NHS sued her employer the Fife Health Board and a trans woman Dr Beth Upton. Dr Upton sought anonymity in the proceedings so that names and other personal details would not be disclosed. A preliminary hearing was on 28th and 29th November 2024 to determine that application. It was made under the 2014 Employment Tribunal Rules of Procedure Rule 50. That is now Rule 49 of the 2024 Rules. It is sometimes referred to as a restricted reporting order.

The main part of this Rule is : (3) Any order made under this rule may require— (a)that a hearing that would otherwise be held in public be conducted, in whole or in part, in private; (b)that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record; (c)that measures are to be taken to prevent witnesses at a public hearing being identifiable by members of the public; (d)that a restricted reporting order is in place within the terms of section 11 (restriction of publicity in cases involving sexual misconduct) or 12 (restriction of publicity in disability cases) of the Employment Tribunals Act; (e)that the name, address or other information of, or relating to, any person be redacted from a claim form, response form, witness statement or any other document in the proceedings.

The Respondents’ application under Rule 50 for anonymity for Dr Upton was rejected so we can report Dr Upton’s name. Later in January 2025 a question arose as to pronoun use in the tribunal hearing. It is Ms Peggie’s case that Dr Upton is a man. It is the Doctor’s and the Health Trust’s case that Dr Upton is a woman. The judge ruled that the Claimant and her legal representatives could use male pronouns whereas he acknowledged that the Respondents would use female ones. At the start of the main hearing on 3rd February 2025 the judge referred to this point and said that it would mean that there would be questions asked with male pronouns that were answered by female ones.

This point is important in this case as it is one side’s case that Dr Upton is a man and the other side’s case that the Doctor is a woman. In our view it could give the appearance of bias by the judge if he ruled that all parties must refer to Dr Upton as a woman and indeed it may even support an argument of bias if he referred to Dr Upton as a woman. His decision as to the Tribunal’s use of pronouns was that it would try and use neutral pronouns and if not female ones ‘out of courtesy’. That seems like an appropriate compromise.

In law sex cannot be changed so Dr Upton’s sex remains that of a man. It would be very odd indeed if a judge rules that a party to a tribunal had to lie in tribunal by describing a man as a woman. Politeness is one thing but making judicial orders about someone’s reality is a different matter entirely. As we said, in our related pronoun article, it is not automatically harassment not to use someone’s preferred pronouns. Indeed it is unlikely that using what someone believes is the correct pronoun in normal conversation is ever going to be judged as harassment.

We got the information about what the judge said about pronouns at the start of the case from the excellent citizen journalists @tribunaltweets X feed.

As we said, Sandie Peggie v Fife Health Board and Dr Beth Upton, Case Number: 4104864/2024 is an important case. We will report here on the eventual outcome. It has already been the subject of much media coverage. We have also written a short guide to dealing with these sort of cases.

Please do not hestiate to contact us if you require any further information about this or any other employment law topic