A Scottish nurse has won part of her employment tribunal against NHS Fife after raising concerns about sharing a female changing room with a transgender doctor, in a case that has reignited debate over workplace rights, sex-based protections and how employers should respond to sensitive staff complaints.
Sandie Peggie, who has worked in the NHS for more than 30 years, was found to have been harassed by the health board in four separate ways after voicing discomfort at sharing the space with Dr Beth Upton, a trans woman colleague. But the tribunal dismissed all her other claims, including against Upton herself, and rejected any finding that trans women should be automatically barred from female-only spaces.
The ruling, handed down on Monday by Judge Sandy Kemp in Dundee, is being seen as a significant test of how April’s Supreme Court judgment on biological sex interacts with workplace practice. It comes amid growing frustration among employers, campaigners and legal experts over the government’s delay in issuing new guidance on single-sex spaces.
Tribunal did not rule out trans access to female spaces
Peggie was placed on special leave in late 2023 after a confrontation with Upton in the changing room at Victoria Hospital in Kirkcaldy on Christmas Eve. Upton later raised concerns about patient care and alleged a hate incident, prompting the board to launch an investigation into Peggie that lasted 18 months and resulted in her being cleared of misconduct.
The tribunal concluded that NHS Fife had acted unlawfully by continuing to allow Upton access to the female changing room on an interim basis after Peggie made her complaint. It also criticised the health board’s delay in investigating the matter, calling it “unreasonable”, and noted that the protracted internal process had caused the nurse distress and uncertainty.
However, the judgment made clear that it was not inherently unlawful for a trans woman, even one biologically male under the Equality Act, to be given permission to use a female-only space at work. Instead, the tribunal said such decisions must be based on the circumstances of each case. Judge Kemp wrote that “[i]t may be lawful to grant permission to a trans person to use the changing room that aligns with the sex and gender they identify as having, dependent on the circumstances”.
That conclusion has led gender-critical campaigners to express frustration that the tribunal did not apply the Supreme Court’s definition of sex more rigidly. Critics argue that employers are still being left without the clarity needed to navigate these situations.
Complaint handling, not policy, was the problem
The tribunal accepted that Peggie genuinely believed she was entitled to privacy from individuals she perceived to be biologically male. It found her distress was not concocted or malicious. But it also found flaws in some of her evidence, including her attempt to distance herself from offensive remarks about flood victims in Pakistan. While the tribunal accepted that her views were rooted in her belief in biological sex, it rejected other elements of her case.
The tribunal preferred the testimony of Dr Upton, describing it as more consistent and credible, even though some of her recollections were later found to be inaccurate. It said those inaccuracies were not intentional and dismissed claims that Upton acted with malice when raising concerns about Peggie’s conduct.
Overall, the ruling did not declare that NHS policies allowing trans access to female facilities were themselves discriminatory. Instead, it found that the employer’s failure to act appropriately after a concern was raised — including the lack of immediate interim measures — was what crossed the line into harassment.
Legal experts say this distinction matters. The ruling suggests that it is not necessarily a breach of the Equality Act to permit trans women to use female spaces, but that employers may still face legal risk if they mishandle concerns raised by other staff.
Employers urged to review internal procedures
Kate Palmer, chief operations officer at employment law advisory firm Peninsula, told HRreview that the case offered important lessons for HR professionals, even if it did not resolve wider policy questions. “While the Employment Tribunal failed to find that it was unlawful for a trans woman to use a single-sex female facility, it did, however, find that some of the employer’s actions towards the employee who complained of sharing a single-sex changing room with a trans woman employee were harassment,” she said.
“For example, the tribunal found that the employer acted unlawfully by failing to remove access to the female changing rooms for the trans employee whilst the complaint was investigated and by taking too long to investigate. Helpfully, these points do not relate to the specific nature of the complaint which means they offer guidance to employers dealing with any type of harassment claim.”
She added that the judgment did not provide definitive guidance on how the law should be applied to single-sex space disputes, and said HR professionals should continue to seek tailored legal advice.
Campaigners say guidance now urgent
Supporters of Peggie said they were pleased that the tribunal recognised failings by the employer but described the ruling overall as disappointing. Many had hoped for a broader legal precedent confirming that women could lawfully object to sharing spaces with trans women and that such objections should be upheld automatically.
Maya Forstater, chief executive of the charity Sex Matters, said she hoped Peggie would appeal. She argued that the tribunal had misapplied the law and failed to give effect to the Supreme Court’s decision in the For Women Scotland case, which confirmed that “sex” in the Equality Act refers to biological sex.
Meanwhile, organisations such as NHS Fife remain caught in the middle. The health board, which has reportedly spent more than £320,000 on legal costs during the case, said it would take time to review the full 312-page ruling. In a brief statement, it said its priority was to “remain a supportive and inclusive environment for all employees and our patients”.
With the Equality and Human Rights Commission’s updated code of practice still unpublished, many HR professionals say they are operating without clear legal boundaries. Despite the Supreme Court’s ruling in April, there is still no formal guidance for how employers should balance the rights of gender-critical staff with those of transgender colleagues, especially in shared facilities.
Until that guidance arrives, experts say employers will need to tread carefully. The Peggie ruling does not ban trans women from female spaces, nor does it require employers to allow access. But it does send a strong message that how a complaint is handled — and how long it takes to resolve — can expose organisations to legal risk, regardless of where they draw the line.
