Former equality chief questions Peggie tribunal ruling

The former chairwoman of an equality watchdog has questioned the decision of an employment tribunal in the case of a Scottish nurse who objected to a transgender doctor using a female changing room.

Nurse Sandie Peggie won a claim for harassment against NHS Fife but other allegations of discrimination and victimisation were dismissed.

Baroness Falkner, a crossbench peer whose tenure at the head of the Equalities and Human Rights Commission (EHRC) ended last month, called the tribunal's judgement "unusual and surprising".

However, lawyer Robin Moira White, who works with trans-led advocacy group Translucent, described the ruling as a "careful analysis".

Ms Peggie took legal action against her employer, NHS Fife, after she objected to Dr Beth Upton - a biological male who identifies as a woman - using a female changing room.

Ms Peggie was suspended from her role at Victoria Hospital in Kirkcaldy, Fife, after Dr Upton complained about the nurse's behaviour.

An employment tribunal ruled that NHS Fife harassed Ms Peggie but dismissed the other allegations against the health board. It also rejected all claims against Dr Upton.

The tribunal also considered the Supreme Court ruling that a woman is defined by biological sex under equalities law.

It found that the ruling did not make it inherently unlawful for a trans female, who is biologically male under the law, to be given permission to use a female changing room at work.

But it also said the court's ruling did not make it inherently lawful. Instead the tribunal recommended that a range of factors should be considered.

Baroness Falkner previously described the Supreme Court judgement as a victory for common sense.

She told the BBC that it was only such a victory if you recognised trans people "exist, they have rights, and their rights must be respected".

Asked about the tribunal's judgement in Ms Peggie's case, the peer said that "on the face of it" it appeared "not be to be compatible" with the Supreme Court ruling.

She said: "If you decide that you're providing a single-sex facility, then you cannot allow any biological males into that facility."

Baroness Falkner told BBC Scotland News there were "an awful lot of questions about the veracity" of the tribunal's ruling and said it was "more than likely" that it would be appealed.

"It is a highly unusual and surprising judgement if you base it on what happened in court during those months, and the written submissions," she said.

The peer added that she would welcome the clarification that a possible appeal would bring.

Ms Peggie welcomed the decision of the employment tribunal on Monday, while the health board said it would take time to work through the details.

A separate hearing will decide on the "remedy" for the nurse, which could include compensation.

Lawyer Robin Moira White, who specialises in taking discrimination cases and who intervened in the Sandy Peggie tribunal on behalf of trans advocacy group TransLucent, said many people believed that Baroness Falkner "had particular views which were being promoted within the Equality and Human Rights Commission" while she was its chair.

The barrister – who is a trans woman – added: "The fact that she is now out publicly continuing to promote those views rather tends to support that view that she wasn't perhaps acting for everyone as one might have expected from a chair of a national human rights commission."

She said the employment tribunal judgement was lengthy and carefully put together.

"It's 312 pages and 1,272 paragraphs of careful analysis by the judge, who has obviously worked very hard to perform the analysis, and a lot of the relevant practitioners - who have obviously had a relatively short time to read it - think the judge has done a very good job," the lawyer said.

She also pointed to the recent ruling in the case of a female worker who lost a discrimination claim against aerospace firm Leonardo UK over the toilet policy for transgender staff in its Edinburgh office, which she said had "come to pretty much exactly the same conclusion" as the tribunal that heard Ms Peggie's case.

The EHRC - which enforces equalities law and provides guidance to policymakers, public sector bodies and businesses - published interim guidance earlier this year in response to the Supreme Court ruling.

The guidance stated that in places such as hospitals, shops and restaurants, single-sex toilets should only be used by people of the same biological sex.

That has sparked legal challenges, with critics describing the guidelines as "legally flawed" and "overly simplistic". The EHRC has denied that the proposals would breach the rights of transgender people.

The interim guidance has since been withdrawn and replaced with a proposed code of practice, under which trans people could be asked about whether they should be accessing single-sex spaces based on their physical appearance or behaviour.

The code of practice must be signed off by ministers to take effect.

Baroness Falkner said the code of practice "balances the rights of trans people as well as women".

She said that the "greatest beneficiaries" of its approval by ministers would be the transgender community, describing it as a "pragmatic, practical, navigational tool as to what should happen in day-to-day situations".

UK Women and Equalities Minister Bridget Phillipson, who received the code three months ago, said that her government was "carefully considering" the proposals.

Speaking in the Commons, she said ministers would ensure "that the proper processes are followed".

A UK government spokesperson said: "We expect everyone to uphold the law and follow the clarity that the Supreme Court ruling provides.

"If organisations are uncertain as to how to apply the Equality Act, they should obtain legal advice.

"The EHRC submitted a draft code of practice to ministers, and we are working at pace to review it with the care it deserves."