The Scottish government “stands firmly behind” the provision of single-sex spaces, a minister has said after the UK equality watchdog addressed issues raised by an employment tribunal brought by a nurse who objected to sharing a women’s changing room with a transgender doctor.
The Equality and Human Rights Commission (EHRC) requested a meeting with Holyrood’s health secretary as well as writing directly to Fife health board, which is disputing the claim, to “remind” management of their obligations under the 2010 Equality Act.
Sandie Peggie, who has worked as a nurse for NHS Fife for more than 30 years, claims she was subject to unlawful harassment under the Equality Act when she was expected to share a changing room with a trans woman, Dr Beth Upton.
Her claim is disputed by the health board, which described it as unnecessary and vexatious. Upton is also disputing it. The doctor complained to the board about Peggie’s behaviour, claiming it amounted to bullying, after an altercation in the women’s changing room in Victoria hospital, Kirkcaldy, in December 2023.
Peggie told a hearing earlier this month that she had felt “embarrassed and intimidated” when Upton started to get changed alongside her.
Upton’s complaint also alleged that on another occasion Peggie left a seriously ill patient when the doctor appeared in the cubicle, a claim that Peggie denies. The tribunal has been adjourned until July.
In Holyrood on Tuesday afternoon, the social justice secretary, Shirley-Anne Somerville, said the Scottish government was considering the letter from the EHRC, which has also raised concerns over forthcoming guidance for NHS Scotland that will recommend trans staff be allowed to use their “preferred facilities”.
Responding to a question from the Scottish Conservative shadow equalities minister, Tess White, Somerville said: “This government stands firmly behind the separate and single-sex exemptions provided in the 2010 act. Members will be aware this allows for trans people to be excluded when this is a proportionate means of achieving a legitimate aim.”
However, referring to reporting in the Herald that NHS Fife may have broken the law by not carrying out the required equality impact assessment on its changing room policy, White said: “We still don’t know how many public bodies are acting unlawfully when it comes to single-sex spaces. This is exactly what we warned about when Nicola Sturgeon was pursuing her flawed gender self-ID plans.”
Before the Scottish Labour conference last weekend, the party’s leader, Anas Sarwar, said he regretted his party’s support for gender recognition reforms, which remain permanently stalled after a challenge from the previous UK government.
Sarwar called for clearer guidance on single-sex provision in the Scottish public sector, but the first minister, John Swinney, has said current guidance is “crystal clear”.
Lawyers and campaigners are watching the Peggie tribunal closely given how little case law exists on the question of workplace changing rooms.
In England, a group of nurses are suing County Durham and Darlington NHS foundation trust for sexual harassment and sex discrimination because of a policy that allows trans women to use their women’s changing rooms.
