Tribunal over nurses changing room row with trans doctor to resume

A nurse who complained about sharing a changing room with a transgender doctor has been cleared of gross misconduct following disciplinary proceedings by NHS Fife.

Sandie Peggie was suspended from her role last year after she objected to Dr Beth Upton, who is a transgender woman, using female facilities.

The nurse had faced allegations of misconduct, failures of patient care and misgendering Dr Upton.

NHS Fife said an internal hearing found there was "insufficient evidence to support a finding of misconduct".

News of the decision came on the eve of the resumption of an employment tribunal in Dundee after a five-month break in proceedings.

Ms Peggie claims her treatment was unlawful under the 2010 Equality Act and has brought a case against the health board and Dr Upton.

NHS Fife and the doctor are defending their actions – at a cost to the public purse so far of at least £220,000 – arguing that they complied with NHS policy.

The tribunal resumed with evidence from Isla Bumba, the equality and human rights officer at NHS Fife.

Ms Bumba said she had been asked for guidance on how the health board should accommodate a trans member of staff, as it did not have any policies in place for the facilities trans staff should use when Dr Upton was hired.

She advised that it could be discriminatory to "not allow a trans person access to facilities that aligned with their gender".

During the morning session, Ms Bumba said she was asked to write up a policy for NHS Fife regarding trans staff.

She said she based her advice on what other health boards and equality leads were advising at the time and that there was a "general consensus" on the matter among health boards in Scotland and England.

Ms Bumba later added that she had also used the Equality and Human Rights Commissions statutory code of practice, which was published in 2011.

She said NHS Fifes lack of policy was partly because it was waiting on the publication of the Once for Scotland guidance, which would deal with standardising workforce practices across the country.

Ms Bumba told the tribunal that national guidance had been sent to health boards in a "soft launch" at the end of last year but was later "pulled" when the employment tribunal started.

Ms Peggie, who has worked at NHS Fife for more than 30 years, told the tribunal she had felt uncomfortable around Dr Upton in a changing room at Kirkcaldys Victoria Hospital on three occasions between August and December 2023.

Dr Upton was born male but now identifies as female.

Ms Peggie said the issue came to a head on Christmas Eve when Dr Upton started to undress in front of her.

Ms Peggie told the tribunal she had felt "embarrassed and intimidated".

The pair then exchanged words - although the details of their conversation are disputed.

After the exchange, Dr Upton complained to NHS Fife about Ms Peggies behaviour and the nurse was suspended on 3 January 2024.

Ms Bumba said she first learned of the incident when she returned from the Christmas break and that the confrontation had sounded like "an unpleasant incident".

The encounter had been listed as a "hate incident" in the health boards risk management log - called a datix - and Ms Bumba said Dr Upton appeared to have handled the incident correctly.

Ms Peggies lawyer Naomi Cunningham later quizzed Ms Bumba over whether she had stated in guidance to NHS Fife that the nurse had the right to be gender critical.

She said she was "100% certain" she had done this.

The lawyer said Ms Bumbas advice was inclusive of trans people but not women who would not want to share changing facilities with them, citing women who had been sexually assaulted or had religious beliefs.

She accused Ms Bumba and NHS Fife of validating trans staff but sacrificing "the privacy, dignity and safety" of women in the process, which she denied.

Ms Bumba said no women had raised concerns with her over trans staff sharing the changing facilities.

She also rejected Ms Cunninghams suggestion that she had placed LGBT rights ahead of other minority groups.

In her evidence, Ms Peggie said she had "felt more shocked than anything" when she learned there was a complaint against her.

The board has described Ms Peggies case as "unnecessary and vexatious" while Dr Upton has accused the nurse of bullying and harassment.

"Im not interested in vengeance and Im not interested in retribution – Im interested in justice," the doctor told the tribunal.

"Trans people are not predators by nature of being themselves."

The tribunal sat for 10 days in February and was then adjourned until now.

The disciplinary hearing, which had also been scheduled for February, was postponed at the request of Ms Peggies legal team.

On Wednesday morning her lawyer Margaret Gribbon, confirmed in a statement released by Sex Matters, that she had been cleared of all allegations.

Ms Gribbon said: "Sandie is relieved and delighted that this 18-month long internal process has concluded and cleared her of all allegations."

NHS Fife confirmed no formal sanction had been imposed on the nurse and that the review panel "concluded that a facilitated reflective practice discussion would be appropriate".

The health board added: "We remain committed to fostering a respectful, inclusive, and safe working environment for all of our staff and patients."

The wider issue of gender has provoked years of debate in Scotland.

This includes arguments about the case of a transgender rapist known as Isla Bryson and an attempt by politicians in Edinburgh – ultimately blocked by Westminster – to make it easier to legally change gender.

A pivotal moment came in April when the UK Supreme Court clarified the law on gender, unanimously ruling that a woman is defined by biological sex under the Equality Act.

"The concept of sex is binary, a person is either a woman or a man," wrote the judges, adding that "the ordinary meaning of those plain and unambiguous words" was self-explanatory and required "no further explanation".

The 88-page judgment was a repudiation of the SNPs interpretation of the law.

The Scottish government responded that it had acted in good faith by arguing in court that trans women were women.

Ms Peggie has since called on NHS Fife to respond to the Supreme Court by acting immediately to "stop permitting any man who identifies as a woman" access to female-only spaces.

NHS Fife says work is under way to "identify areas where any adaptations may be required and schedule any work that may be necessary," as a result of the judgment.

It added that it was waiting to review a new code of practice expected to be issued by the Equality and Human Rights Commission (EHRC), which advises public bodies on the law.

In a statement, the EHRC said it was "currently working at pace" on the new advice but it added that organisations should "comply with the law" now by "looking at what changes, if any, need to be made to their policies and practices".

The Scottish government says it "accepts the Supreme Court ruling" adding that "detailed work that is necessary as a consequence" is ongoing.