It is the changing room exchange that has become the nightmare before Christmas for NHS Fife.
On December 24, 2023, A&E nurse Sandie Peggie and trans doctor Beth Upton rowed at Kirkcaldy’s Victoria Hospital.
What was said that day has been scrutinised by lawyers these past few weeks at an employment tribunal in Dundee, where Ms Peggie is suing NHS Fife and Dr Upton.
The central point boils down to Ms Peggie’s complaint about sharing a female changing room with a transgender person, and how it ended up being a disciplinary matter for the health board.
But wider debate about self-identification for trans people has also acted like a lightning rod for a wider global culture war of opinions.
There have been some unexpected twists and turns too.
The nurse’s husband was quizzed about sharing “racist” posts; an onlooker was asked to stop sketching Dr Upton; there were accusations of lawyer heckling.
Throughout, there was also a clear tension in the room in Dundee where the tribunal played out over two weeks before being paused before it calls again in summer.
At one point, the number of people logging on to the proceedings online proved too much and the judge called a halt to stop interruptions.
A crying baby could be heard from one location while the case was being heard.
How did it begin?
Ms Peggie lodged a complaint of sexual harassment or harassment related to a protected belief under s26 of the Equality Act 2010 regarding three incidents when she shared a changing room with the medic, who was born male.
The nurse believes she was a victimised whistleblower after she was later suspended over an allegation of bullying and harassment.
The proceedings had been expected to reach a conclusion by now, with the judge considering the arguments before delivering the findings.
That will have to wait.
The stakes are high – and not just for NHS Fife, a health board which has spent thousands of taxpayer cash defending its position and was accused of being “extraordinarily negligent” over the disclosure of documents.
Gender-critical activist Maya Forstater – who leads pressure group Sex Matters and is backing Ms Peggie – believes the tribunal could fuel sweeping changes to transgender changing room laws.
What is the law on shared spaces?
A major point of argument is the claim NHS Fife’s policy was “failing to meet legal obligations” of the Equality Act 2010 and the Workplace (Health, Safety and Welfare) Regulations 1992, which requires employers to provide separate toilets, washing facilities and changing areas for men and women.
If all the above is the case, why was Dr Upton allowed to use female changing rooms at Victoria Hospital? Or is the problem a wider fault-line on who gets to decide who is a man or a woman in the first place?
A new NHS Scotland guide, due for release in 2025, says transgender staff must be allowed to use their “preferred facilities” unless there is a particular “case-by-case” reason.
Despite the various statements in legislation, the debate has been far from clear inside the parliament that passes laws in the first place.
And the equalities watchdog has also intervened in the row, demanding NHS Fife release its policies and impact assessments.
First Minister John Swinney swerved questions about the tribunal during a visit to Dundee.
And SNP politicians tried to avoid attempts to get questions about the tribunal aired in Holyrood.
At first minister’s questions on February 20, Mr Swinney had no choice but to answer sustained questions from the opposition.
But he still does not want to comment on specifics.
“If I was to comment on this case I would be in danger of breaking the law. I believe in the rule of law and nobody will persuade me to break the rule of law in this Parliament,” he said.
For many, the lasting impression of the tribunal will be day two, when Ms Peggie was cross-examined by Jane Russell KC representing NHS Fife and Dr Upton.
The A&E nurse was asked about her political beliefs – she admitted being a fan of US President Donald Trump – and had to deny being racist.
Lucy Hunter Blackburn, co-author of The Women Who Wouldn’t Wheesht, wrote on social media: “I need to take a break from following the cross-examination of Sandie Peggie, because this is like listening to a witch trial.
“It’s actually distressing. And we’re paying for it.”
Alongside an image claimed to be of Dr Upton, Harry Potter author JK Rowling said: “Scotland: the country where a female nurse is currently defending herself in court against accusations of ‘harassment’ and ‘bullying’ because she objected to getting changed in front of the doctor pictured below.”
In a clear sign of the growing interest, Ms Peggie was even piped into the tribunal by supporters on one occasion.
Dr Upton also made a statement, calling for “basic respect”.
“I am aware that some people are uncomfortable with trans people,” Dr Upton said.
“But I don’t think that automatically overrides a trans person’s right to access a changing room which aligns with their gender identity.”
Meanwhile, the tribunal has also been a bruising experience for NHS Fife, which faces questions about its management, its wider processes and the taxpayer cash used on this issue.
The health board’s social media posts on careers events, vaccination clinics and mental health have been hijacked during the proceedings.
Separately to the tribunal being held in Dundee, a disciplinary hearing was due to be held on Ms Peggie’s future on Friday, but has been rearranged for an unspecified future date.
A 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 in July.
