A nurse can refer to a transgender doctor she claims she was forced to get changed in front of a man at work in a legal victory.
Employment judge Sandy Kemp rejected an NHS request to impose an order on Sandie Peggie, which would have prevented her from using male pronouns or terms to refer to Beth Upton, a doctor who identifies as a transgender woman.
Despite NHS Fife insisting that both the “sex and gender” of Dr Upton is female and that allowing “misgendering” would amount to unlawful harassment, the judge said forcing Ms Peggie and her lawyers to use terms they consider “inaccurate” would be unfair.
Ms Peggie believes that Dr Upton is male and therefore should not have been in female changing rooms in Victoria Hospital, Kirkcaldy, where she says she encountered her on three occasions.
She is taking action against both NHS Fife and Dr Upton personally in a case which could have wider implications for how easily trans women can access female single-sex spaces.
Mr Kemp also said the tribunal itself should use “neutral” terms for Dr Upton as “standard practice”, following claims that panel members referring to the medic as a female could imply bias.
However, the direction is not binding and pronouns may be used where “considered appropriate”.
The latest victory for Ms Peggie, in advance of hearings getting underway, follows failed attempts by NHS Fife to hold proceedings in secret and to prevent Dr Upton’s identity being disclosed.
“NHS Fife has tried hard to keep the case out of the news,” said Fiona McAnena, director of campaigns at Sex Matters, a group backing Ms Peggie.
“They also tried to prevent Sandie giving her evidence clearly and truthfully.
“But this whole case is centred on the fact that [Dr Upton] is a male who uses a female changing room. The use of a female name does not make him female.”
‘Misgendering’ not banned
Mr Kemp acknowledged that “misgendering” of Dr Upton is likely to prove “painful and distressing” but said he was not convinced by claims that, in the context of an employment tribunal, it would in itself amount to unlawful harassment.
However, he said the bar for harassment could be met if male pronouns are used “gratuitously and offensively on a repeated basis”.
He said Ms Peggie and her representatives “may wish to reflect” on whether it was “necessary or appropriate” to use male terms to refer to Dr Upton, even though they are not banned from doing so.
The health board has faced criticism for attempting to have the case held in secret, and then to restrict what Ms Peggie can say when giving evidence.
Following hearings last week, Joanna Cherry, lawyer and former SNP MP, said “we don’t have compelled speech in Scotland” and branded NHS Fife’s actions “a shocking waste of public money”.
Mr Kemp also rejected a bid by NHS Fife to ban Tribunal Tweets, a social media account with a particular interest in gender cases, from posting live updates of the hearings.
Jane Russell, the lawyer representing NHS Fife and Dr Upton, had claimed she had “serious concerns” about the “citizen journalist” platform which she argued would present a warped version of events.
She said its content was often reproduced on platforms like Mumsnet, where “objectionable and offensive” partisan commentary would be added by other internet users.
However, Mr Kemp said Tribunal Tweets would be permitted to report live updates so long as they were “fair and accurate”.
A 10-day hearing is due to begin on Feb 3.