Gray ‘was warned NHS Fife acting unlawfully over changing rooms’

Health Secretary Neil Gray was warned last year that NHS Fife was “failing to comply with legal obligations” by allowing a transgender doctor to use a female changing room, it has been reported.

Nurse Sandie Peggie, who 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 room.

Ms Peggie lodged a complaint of sexual harassment or harassment related to a protected belief under Section 26 of the Equality Act 2010 regarding three incidents when they shared a changing room: indirect harassment, victimisation and whistleblowing.

She was suspended in January 2024 following Dr Upton making an allegation of bullying and harassment but did not learn of two allegations of patient safety until March 28, both of which she denies, and returned to work in April under investigation.

The Herald has reported that Ms Peggie’s solicitor wrote to Mr Gray to warn NHS Fife was failing to comply with several “legal obligations”.

The letter from solicitor Margaret Gribbon is reported to have cited the Human Rights Act 1998 “not to expose female staff to violations of their Article 3 and 8 rights to privacy and dignity and not to be exposed to indecent exposure or voyeurism”, the 2010 Act “not to indirectly discriminate against female staff”, a “legal obligation to provide suitable workplace single-sex toilets and changing facilities”, and to ensure women “are not sexually harassed”.

A civil servant in the Scottish Government’s Health Workforce Directorate responded that “responsibility for complying with the requirements of the Equality Act rests with NHS Scotland boards”, and cited the Independent National Whistleblowing Officer to “provide confidential help via their independent advice line”, The Herald reported.

The response continued: “The Scottish Government supports the appropriate use of the single-sex exemptions where it is a proportionate means of achieving a legitimate aim. Health boards should assess each situation individually and sensitively using experience and expertise to determine the appropriate course of action while fulfilling their responsibilities under the Equality Act.”

Giving evidence at the tribunal, Ms Peggie’s line manager, clinical nurse manager Esther Davidson, said she was advised by NHS Fife’s equality and diversity department that she was “not permitted to exclude transgender females from the changing rooms”.

The tribunal was adjourned on Friday after two weeks and will resume in July for up to 11 days, with an application made for a consultant to be added as a third respondent.

Concerns were raised about the costs of the case as NHS Fife warned last year it was anticipating a £55 million budget gap by 2025.

Conservative MSP Murdo Fraser, who represents Mid-Scotland and Fife, said his constituents were “appalled that an NHS board which already has huge financial issues is spending tens of thousands on legal costs defending Sandie Peggie’s tribunal”.

Mr Fraser added: “There are very serious questions for NHS Fife’s board and senior management. The revelation that Neil Gray was contacted but did nothing is deeply concerning, particularly given the funding situation at NHS Fife.

“Under Nicola Sturgeon, the Scottish public sector was subject to policy capture by a tiny group of trans activists, and it seems her successor, John Swinney, has done nothing to rectify the situation.”

On Thursday, Mr Gray said the Government will “take on board recommendations as they come forward” and will “look with interest” at the outcome of the case.

Former SNP MP Joanna Cherry KC said: “It won’t do for the Scottish Government to distance themselves from Nicola Sturgeon’s legacy and mouth platitudes about women’s rights to single-sex spaces when huge sums of taxpayers’ money are being spent arguing against such rights in court.

“That’s what happened in the Supreme Court at the end of last year, and it’s happening again in this tribunal. The public have a right to know what the Government’s position is and why so much of their money is being spent defending these cases.”

Chief executive of Sex Matters, Maya Forstater, who was a witness in the tribunal, said: “This is an abdication of responsibility for making sure that NHS Scotland’s own policies are in line with the law.

“Neil Gray’s reticence contrasts with (UK Health Secretary_ Wes Streeting’s willingness to voice support for nurses in a similar case in England.”

A spokesperson for the Scottish Government said: “This is an ongoing employment tribunal and it would not be appropriate to comment.”