A transgender doctor told NHS managers of intent to use female changing room facilities and denied that using them despite the discomfort of a female nurse was “bullying and harassment”, an employment tribunal has heard.
Nurse Sandie Peggie, who has worked at the Victoria Hospital in Kirkcaldy, Fife, for 30 years, took the Fife health board and Dr Beth Upton to tribunal after being suspended following an incident on Christmas Eve 2023 in the female changing rooms.
Ms Peggie, known as the claimant, lodged a complaint of sexual harassment or harassment related to a protected belief under s26 of the Equality Act 2010 regarding three incidents when they shared a changing room – indirect harassment, victimisation, and whistleblowing – after being suspended over an allegation of bullying and harassment.
Dr Upton, known as the second respondent, gave evidence on Monday at a tribunal in Dundee.
The judge said there would be questions about whether permission for Dr Upton to use a female changing area was “lawful” for the first respondent, Fife health board.
Both respondents are represented by Jane Russell KC.
On Monday, the tribunal heard Dr Upton told line manager Dr Kate Searle about intention to use female changing rooms, based on “previous experiences”.
The tribunal heard Dr Upton used a “disappointed emoji” in a note-to-self after an encounter with Ms Peggie on August 26 2023, when she “looked taken aback”.
I had reached out to say as a trans woman I had used women's changing rooms in previous jobs and intended to. My understanding was that was what I would do, use female changing rooms
Giving evidence, Dr Upton told the tribunal repeatedly “I’m not male”, and that a Gender Recognition Certificate should not be “required for a trans person’s gender identity to be validated or respected” .
A statement from Dr Upton was read to the tribunal, regarding how permission was obtained, which said: “I had reached out to say as a trans woman I had used women’s changing rooms in previous jobs and intended to. My understanding was that was what I would do, use female changing rooms.”
Barrister Naomi Cunningham, representing Ms Peggie, said: “Do you agree that you made it clear to Kate Searle that you intended to use the women’s changing room and she and the board acquiesced?”
Dr Upton said: “This was my understanding based on previous experience. She agreed that was the best way to proceed.”
Ms Cunningham said: “You were well aware that some of your female colleagues might not be happy.”
Dr Upton said: “I would disagree. I am aware that some people are uncomfortable with trans people but I don’t think that automatically overrides a trans person’s right to access a changing room which aligns with their gender identity.”
The second respondent (Dr Upton) was entitled to be there because she was given permission. Whether or not that was right or wrong should be taken up with first respondent (Fife health board) who gave permission, not the second respondent who received it
Ms Cunningham said: “The reason why some of your female colleagues might be unhappy was obvious. You’re male. At least some of those women might experience this as an invasion of privacy.”
Dr Upton said: “I’m not male. Why they might be uncomfortable with me is up to them. I would disagree that I’m male and would disagree that my presence in the changing room is an invasion of privacy in their space.”
Rejecting an attempt to ask about “surgical procedures”, Ms Russell branded the question “demeaning and hurtful”, and said: “This case is about whether or not the claimant was harassed.”
Ms Cunningham said: “The starting point is that an employer is not entitled to give an employee permission to harass; whether or not the second respondent had permission to enter the women’s changing room isn’t relevant. What matters is what he did and what its purpose or effect was. He says he was entitled to be there as he’s a woman. The claimant says he’s not entitled to be there as he’s a man. It doesn’t appear to be about his medical or surgical status.”
Ms Russell said: “The second respondent was entitled to be there because she was given permission. Whether or not that was right or wrong should be taken up with first respondent who gave permission, not the second respondent who received it.”
Judge Alexander Kemp said there would be questions on “whether permission given by first respondent was lawful”.
Ms Cunningham said: “Insisting that Sandie Peggie and her colleagues accept you without showing any sign of discomfort, that insistence that they pretend to believe something everyone knows is false, is bullying or harassment.”
But Dr Upton said: “I haven’t insisted they do anything and no I don’t believe that’s bullying or harassment.”
Ms Cunningham compared the situation to “the ultimate humiliation” in George Orwell’s dystopian novel 1984, and said: “In the last few pages of novel 1984, the torturer holds up four fingers and forces Winston Smith to say he can see five. The ultimate humiliation of Winston Smith is to confirm something both he and torturer know should be false.”
Ms Russell said that “comparing Dr Upton to the torturer in 1984 is worse than what the claimant did in comparing her to a convicted rapist”.
Ms Peggie previously said she was not drawing comparisons to a convicted rapist when she likened the situation to a “biological man in a women’s prison”.
Giving evidence, Dr Upton described the Christmas Eve incident as “premeditated” “sustained harassment”.
Ms Peggie’s barrister told the tribunal that Dr Upton sent a complaint at 3.17am on Christmas Day 2023 to line manager Dr Kate Searle.
She also told the tribunal that Dr Searle sent an email to consultants on December 29, presenting the “second respondent as the victim and the claimant as the bully before any investigation had taken place”, which Ms Cunningham described as “an act of discrimination”.
It was disclosed by Ms Peggie’s legal team that Ms Peggie had been sexually assaulted “several times” by a GP, and Dr Upton was asked if that “justified” her feelings.
Dr Upton said: “It’s a very difficult situation when someone has very serious trauma. I do not think it justifies excluding people.”
Ms Cunningham said Dr Upton was trying to “assert dominance” by repeatedly raising issues around language in the tribunal, and by engaging with Ms Peggie rather than leaving.
She said Dr Upton was a “man who does not care about women’s boundaries”, and had “shown a complete contempt for women’s bodily autonomy and privacy…in keeping with harassing behaviour towards the claimant”, regarding attitudes to female patients, the tribunal heard.
Ms Cunningham said both respondents “had been willing to sacrifice the privacy and dignity” to “validate” gender identity, the court heard.
Dr Upton said: “Many of my female colleagues consider me a woman.”
An NHS Fife spokesperson said: “NHS Fife considers it inappropriate to comment during the employment tribunal.
“It is important to recognise that at the heart of this case are two employees, who should be treated with kindness and respect.
“As an organisation, NHS Fife remains committed to upholding its duty of care to all employees.”
The tribunal continues.
