Sandie Peggie-NHS Fife: How trans people are being deeply harmed by uncertainty over single-sex spaces

We do not know what rights we do, or do not, have. The Equality and Human Rights Commission (EHRC) has submitted new rules on how services should operate to the UK Government. These would see trans people excluded and segregated from services that we need just as much as anyone else, where these are provided separately for men and women – things like emergency homelessness accommodation or support services for people who have experienced domestic abuse or sexual violence.

Much of this mess is the result of a series of court decisions during the last year. In the latest case involving nurse Sandie Peggie, there has been close to zero empathy for Dr Beth Upton in the non-stop reporting.

READ MORE: Sandie Peggie judgment: What did the employment tribunal uphold – and throw out?

Peggie found to have harassed Upton

Ms Peggie, who took her employer NHS Fife and her colleague Dr Upton to an employment tribunal, believes that trans women should not be allowed to use women’s toilets or changing rooms. While I totally disagree with this view, I accept her right to hold it.

But there is a difference between being free to have and express your opinions and crossing a line into harassing a colleague. This is what the tribunal ruled happened. They judged that Ms Peggie harassed Dr Upton because she is trans, and that she had breached NHS Fife’s bullying and harassment policy.

Amongst the noise since the decision, this is rarely acknowledged. Regardless of what your view is on questions of sex, gender and the law, that people should not face harassment at work simply for who they are should be accepted. It’s been pretty depressing how few people seem to agree.

The tribunal also found that NHS Fife had harassed Ms Peggie, and that was related to her gender-critical beliefs. They said that the investigation into her conduct had been handled poorly, and that NHS Fife should have ensured that Dr Upton and Ms Peggie would not encounter each other in the women’s changing room while they were dealing with Ms Peggie’s complaints.

Despite disagreeing with Ms Peggie’s views, I do think this should have been handled better. We should expect our employer to try to resolve issues that we raise as much as is practical and reasonable. And we would all want our employer to investigate complaints against us swiftly and fairly.

READ MORE: Sandie Peggie vs NHS Fife: Why silencing of gender critical voices was root cause of problem

Interpreting Supreme Court ruling on sex

It was April’s decision of the UK Supreme Court, that in the Equality Act 2010 the terms “sex”, “man” and “woman” mean “biological sex”, “biological man” and “biological woman”, which started this mess. While the court never quite defined what “biological” means, the intent is clear.

Trans people, for the purpose of the Equality Act 2010, should be defined by our sex recorded at birth. Even though this is completely at odds with how we understand ourselves, live our lives, or want to be treated by others.

Since that ruling, gender critical organisations and campaigners have been relentless in pushing their view of what it means. Trans people should be banned from the spaces and services we’ve used for decades. Who we truly are should be ignored – we can ‘play pretend’, and we’re defined by the bodies we were born with.

The recent decision in the Peggie tribunal, as well as another, Maria Kelly vs Leonardo, just the week before and also in Scotland, suggest the version of the world which gender critical campaigners insist the Supreme Court ruling has ushered in may not be the one that the law requires.

Both cases shared a key theme – whether their employer had been breaching the law by allowing trans women to use women’s changing rooms or women’s toilets. The two judges ruled that they had not, with full acknowledgement of April’s Supreme Court ruling.

Stuck in uncertainty

But where does that leave us? Both Ms Peggie and Ms Kelly are appealing their cases. The High Court is yet to give its verdict on a separate case, heard last month, about whether the statement from the EHRC earlier this year, that trans people must always be excluded from toilets and changing rooms that match how we live our lives, was a correct statement of the law.

The UK equalities minister suggested to the court that it was not. So we are stuck in uncertainty, with trans people, at the heart of the confusion, being deeply harmed in the meantime.

READ MORE: Leonardo engineer to appeal after losing case over single-sex toilets access

Behind the headlines and the parliamentary grandstanding is the real impact, on real people. I was recently unexpectedly in hospital. After about ten hours waiting for a bed, I would have liked to let my partner head home but asked her to stay.

I had never been to that hospital before and wasn’t sure whether they had individual rooms or wards. And I was anxious that I might find myself on a woman’s ward. On top of the pain, exhaustion and potential emergency surgery, I had uncertainty and dread.

I was lucky – the hospital had individual rooms. But I have already heard about trans people who have chosen not to be admitted to hospital, against medical advice, because they have been told they had to be placed on a ward for their “biological sex”.

Is this a correct interpretation of the law? Amid legal cases, media noise, and political theatre, we really don’t know. I hope not. But if it turns out, once this all shakes out, that it is, then the law will have to change.

Vic Valentine is manager of Scottish Trans