A transgender doctor at the centre of an employment tribunal has disagreed that their presence in a female changing room was an “invasion of privacy”.
The tribunal has been brought by nurse Sandie Peggie, who was suspended from Victoria Hospital in Kirkcaldy in January 2024 after objecting to Dr Beth Upton using the changing facilities in the A&E department on Christmas Eve 2023.
The nurse, who was accused of bullying and harassment, has lodged a complaint against NHS Fife and Dr Upton of sexual harassment or harassment related to protected beliefs under the Equality Act 2010 regarding three changing room incidents – indirect harassment; victimisation; and whistleblowing.
At the tribunal in Dundee on Monday, Dr Upton said they had told line manager Dr Kate Searle about their intention to use the female changing rooms, based on “previous experiences”, and permission was obtained.
Barrister Naomi Cunningham, representing Ms Peggie, said: “You were well aware that some of your female colleagues might not be happy.”
Dr Upton replied: “I would disagree. I am aware that some people are uncomfortable with trans people, but I don’t think that automatically overrides a trans person’s right to access a changing room which aligns with their gender identity.”
Ms Cunningham then said: “The reason why some of your female colleagues might be unhappy was obvious. You’re male.
“At least some of those women might experience this as an invasion of privacy.”
Dr Upton replied: “I’m not male. Why they might be uncomfortable with me is up to them.
“I would disagree that I’m male and would disagree that my presence in the changing room is an invasion of privacy in their space.”
While giving evidence, the doctor repeatedly said they were “not male” and that a Gender Recognition Certificate should not be “required for a trans person’s gender identity to be validated or respected”.
Dr Upton said: “Many of my female colleagues consider me a woman.”
The doctor rejected an attempt to ask about “surgical procedures”.
Jane Russell KC, representing the health board and Dr Upton, branded the question “demeaning and hurtful”, adding: “This case is about whether or not the claimant was harassed.”
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Ms Cunningham said: “The starting point is that an employer is not entitled to give an employee permission to harass; whether or not the second respondent had permission to enter the women’s changing room isn’t relevant.
“What matters is what he did and what its purpose or effect was. He says he was entitled to be there as he’s a woman.
“The claimant says he’s not entitled to be there as he’s a man. It doesn’t appear to be about his medical or surgical status.”
Ms Russell argued that Dr Upton was “entitled to be there because she was given permission”, adding that “whether or not that was right or wrong” should be taken up with NHS Fife who gave permission.
Judge Alexander Kemp said there would be questions on whether permission given by the health board “was lawful”.
Ms Cunningham said: “Insisting that Sandie Peggie and her colleagues accept you without showing any sign of discomfort, that insistence that they pretend to believe something everyone knows is false, is bullying or harassment.”
But Dr Upton replied: “I haven’t insisted they do anything and no I don’t believe that’s bullying or harassment.”
Dr Upton described the Christmas Eve incident as “premeditated” and “sustained harassment”.
The tribunal heard how Dr Upton sent a complaint to Dr Searle at 3.17am on Christmas Day.
Dr Searle then emailed consultants on 29 December, presenting Dr Upton “as the victim and the claimant as the bully before any investigation had taken place”, which Ms Cunningham described as “an act of discrimination”.
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It was disclosed by Ms Peggie’s legal team that the nurse had been sexually assaulted “several times” by a GP, and Dr Upton was asked if that “justified” her feelings.
Dr Upton replied: “It’s a very difficult situation when someone has very serious trauma. I do not think it justifies excluding people.”
Ms Cunningham said the doctor was trying to “assert dominance” by repeatedly raising issues around language in the tribunal, and by engaging with Ms Peggie rather than leaving.
She said Dr Upton was a “man who does not care about women’s boundaries” and had “shown a complete contempt for women’s bodily autonomy and privacy… in keeping with harassing behaviour towards the claimant”, regarding attitudes to female patients.
Ms Cunningham said both the doctor and NHS Fife “had been willing to sacrifice privacy and dignity” to “validate” gender identity.
The tribunal continues.
