Harassment verdict in NHS trans changing room tribunal

Nurse Sandie Peggie has won a claim for harassment against NHS Fife after objecting to sharing a changing room with a transgender colleague.

Ms Peggie’s other claims of discrimination and victimisation were not upheld by the employment tribunal, who expressed the view that the law does not say whether a transgender woman using a female changing room is legal or illegal.

Ms Peggie brought the legal challenge after being suspended from her job in the A&E department of Victoria Hospital, Kirkcaldy. She had complained about sharing a female changing room with Dr Upton, a biological male who identifies as a woman.

The results of the tribunal, detailed in a 312 page report, found that NHS Fife had harassed Ms Peggie in four key ways:

1. Permission for Dr Upton to use the changing rooms should have been revoked on an interim basis after Ms Peggie brought her complaint, until shift patterns could be arranged so that they were not working at the same time.
2. NHS Fife took an unreasonable length of time to investigate the allegations against her.
3. The NHS Trust should not have made reference to unproven allegations regarding patient care.
4. Ms Peggie should not have been told not to discuss the case.

Although the claims of harassment were upheld by the tribunal, Ms Peggie’s claims of discrimination and victimisation against NHS Fife and Dr Upton were dismissed.

The result of this tribunal will have effects on how organisations such as the NHS manage issues such as the use of changing rooms. The Supreme Court ruled earlier this year that gender was defined by biological sex for the purposes of equality law. Since then many organisations have been waiting for guidance from the government’s watchdog, the Equality and Human Rights Commission (EHRC).

The tribunal’s ruling demonstrates that Ms Peggie had a reasonable right to complain that she was sharing a changing room with a transgender colleague. It was not bigoted or transphobic to make such a complaint, and her employer should have taken action regarding her concerns.

The tribunal also ruled that a transgender person using a single-sex changing room was neither legal or illegal, but depended on whether a colleague complains about having to share that space. This ruling is not legally binding, however, and likely to be contested in other legal cases.