NHS Fife is being told to admit defeat in the tribunal brought by Kirkcaldy nurse Sandie Peggie after a landmark ruling by the country’s highest court.
The Supreme Court ruled the terms “woman” and “sex” in the Equality Act 2010 refer to a biological woman and biological sex.
Senior judges rejected an earlier Scottish Government’s position that a transgender woman with a Gender Recognition Certificate became a woman under equalities law.
The justices later said that if “sex” did not only mean biological sex in the Equality Act, providers of single-sex spaces including changing rooms, homeless hostels and medical services would face “practical difficulties”.
Ruling likely to have impact on bodies like NHS Fife
Legal commentators say the judgement will have an impact on how public bodies govern access to single-sex spaces.
Mid Scotland and Fife MSP Murdo Fraser now says NHS Fife should admit defeat in its case.
Ms Peggie is suing the health board and A&E medic Dr Beth Upton – who was born a man but identifies as a woman – for harassment and discrimination.
The veteran nurse was suspended after a confrontation with Dr Upton in the female changing facilities at the Victoria Hospital in Kirkcaldy on Christmas Eve in 2023.
Ms Peggie confronted Dr Upton after becoming uncomfortable when the medic started to undress in the changing room.
NHS Fife argued its guidance at the time was that transgender staff should be allowed to use the changing facility of their acquired gender.
NHS Fife ‘don’t have a leg to stand on’
Mr Fraser said: “They basically don’t have a leg to stand on now.
“The judgement from the Supreme Court is a comprehensive, detailed and authoritative unanimous judgement from the country’s highest court which settles the law on the definition of a woman.”
He added: “How can NHS Fife possibly continue to waste public funds defending the Sandie Peggie case when their defeat is inevitable?”
A Scottish Government spokeswoman said: “The Supreme Court rightly counselled against reading this judgment as a triumph of one or more groups in our society at the expense of another. It is not.
“The ruling gives clarity between two pieces of relevant legislation passed at Westminster. We will now engage on the implications of the ruling. Protecting the rights of all will underpin our actions.
“The Scottish Government acted in good faith in our interpretation of both the Gender Recognition Act 2004 and the Equality Act 2010; and our approach was guided by the published guidance of the EHRC.
How will the judgement affect the tribunal?
The full ramifications of the judgement are still being examined. The equalities regulator, which has contacted NHS Fife over the Sandie Peggie case, says it will respond in full after further analysis.
The justices said: “Read fairly and in context, the provisions relating to single-sex services can only be interpreted by reference to biological sex.”
The binding precedent set by the Supreme Court will be taking into account during the Employment Tribunal’s consideration of Sandie Peggie’s claim.
A spokesman for NHS Fife said: “NHS Fife notes the clarity provided by today’s Supreme Court ruling regarding the legal definition of a woman.
“We will now take time to carefully consider the judgment and its implications.”
Maya Forstater, CEO of charity Sex Matters, said: “Surely this is the last nail in the coffin for the idea that women at work should have to put up with male colleagues being allowed into their changing rooms, showers and toilets.
“Employers like NHS Fife have misunderstood the law for far too long.
“Employers have a legal obligation to provide single-sex facilities at work. Instead of enforcing ordinary rules they allowed gender ideology to subvert them, and claimed falsely that this is what the Equality Act demanded. They have no excuses now.
“There is no defence in law for NHS Fife to allow a male staff member to use the women’s facilities, or to victimise women like Sandie Peggie who stand up for their rights.”
