'Concerned' equalities watchdog intervenes in NHS Fife transgender row involving Dr Beth Upton

The Equality and Human Rights Commission (EHRC) has written to the health board reminding it of its legal obligations and requesting copies of key documents.

It has also asked for a meeting with Neil Gray, the SNP Health Secretary, amid “concern” over a forthcoming NHS Scotland guide to transitioning. The development follows weeks of controversy sparked by an ongoing employment tribunal.

Nurse Sandie Peggie was suspended from her work at the Victoria Hospital in Kirkcaldy, Fife, in January last year after she objected to Dr Beth Upton, a trans woman, using the female changing room in the accident-and-emergency (A&E) department on Christmas Eve 2023.

She has lodged a claim against the Fife health board and Dr Upton, citing the Equality Act 2010, including sexual harassment, harassment related to a protected belief, indirect discrimination and victimisation.

Baroness Kishwer Falkner, chairwoman of the EHRC, said: “As Britain’s equality regulator, we promote and enforce compliance with the Equality Act 2010.

“Health bodies in Scotland, England and Wales must have an accurate understanding of the operation of the Equality Act as it relates to the provision of single-sex services and spaces.

“Today we reminded NHS Fife of their obligation to protect individuals from discrimination and harassment on the basis of protected characteristics, including sex, religion or belief and gender reassignment.

“Under the Public Sector Equality Duty, all Scottish health boards must assess how their policies and practices affect people with protected characteristics.

“We have requested that NHS Fife provide us with a copy of any equality impact assessment relating to the provision of changing facilities for staff; any information relevant to how such policies have been kept under review; and any details on steps taken to ensure that the rights of different groups are balanced in the application of these policies.

“We also highlighted that the Workplace (Health, Safety and Welfare) Regulations 1992 state that changing facilities will not be suitable ‘unless they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety’. The Health and Safety Executive have an approved code of practice and guidance that NHS boards can refer to.

“This week media reported on NHS Scotland’s forthcoming guide to transitioning, which the Scottish Government confirmed has been shared with health boards in preparation for its implementation. It is important that this guide, and all guidance, policies and practices which rely on it, faithfully reflect and comply with the Equality Act 2010.

“We have asked to meet with the Cabinet Secretary to discuss the Scottish Government’s role in ensuring that NHS Scotland and other bodies meet their legal obligations under the Equality Act.”

In its letter to Mr Gray, the EHRC said it was “concerned about the media depiction of the [NHS Scotland guide to transitioning], for which you have oversight, and whether it is likely to comply with and accurately represent Equality Act 2010 provisions”.

Reports have suggested the document says transgender NHS staff must be allowed to use their “preferred facilities” unless there is a “case by case” reason against it – however, it is currently not on the government website.

A separate letter to NHS Fife makes reference to media reports about its practices around single-sex changing facilities. It said assessments of new policies and practices which affect equalities legislation must be published.

The EHRC said: “You must also publish the results of this assessment within a reasonable period. We have been unable to find this information on the NHS Fife website.”

A spokesperson for NHS Fife said: “We acknowledge the letter from the Equality and Human Rights Commission and note its contents. We will respond fully to the commission in due course.”

A Scottish Government spokesperson said: “We will respond to this letter in due course.

“The Scottish Government expects all relevant organisations to comply with the requirements of the Equality Act 2010.

“As employers, organisations may need to consider the impact of other legislation, such as the requirements of the law on health and safety in workplaces. 

“The Scottish Government supports the separate and single sex exceptions in the Equality Act 2010, which can allow for trans people to be excluded when this is a proportionate means of achieving a legitimate aim.”

Ms Peggie’s employment tribunal was raised at First Minister’s Questions earlier this week, with Scottish Conservative leader Russell Findlay saying it stemmed from “gender ideology” pursued by the Scottish Government.

Mr Findlay said the “dedicated” nurse faces being sacked because she raised concerns about having to share a changing room with a trans doctor.

First Minister John Swinney hit back, accusing the Conservatives of “sowing division” as he said the law prevents him from commenting on the tribunal.

The tribunal has been adjourned until July.