Thread by @tribunaltweets

Proceedings expected to resume this morning in Peggie vs Fife NHS and Dr B Upton at 10 am. We will be reporting.

Our Substack with links to case background, our reporting, other press can be found here:
open.substack.com/pub/tribunaltw…

Cross examination of Ms Peggie by Jane Russell for the respondents will continue. A reminder of the judge's instructions to witnesses.

Abbreviations
C/SP - Claimant, Sandy Peggie
NC - Naomi Cunningham, C’s barrister
MG - Margaret Gribbons, C’s solicitor
R/Board - first respondent, Fife Health Board
R2/DU - second respondent, Dr B Upton
JR - Jane Russel, barrister for respondents

AW - Adam Watson, solicitor for respondents
J - Employment Judge Alexander Kemp
ET - Employment Tribunal
P1, P2 - additional panel members
CR - changing room
AE - Accident & emergency department

PCP – provision, criteria or practice is a rule, policy, or practice that can put people at a disadvantage based on certain characteristics. Used in employment law to assess whether an employer's actions create different outcomes for employees based on their characteristics.

GC or SR: belief that biological sex is important,
immutable and different from gender identity
TWAW - transwomen are women (refers to male persons who claim a female gender identity)
TMAM - transmen are men (refers to female persons who claim a male gender identity)

CX - complaint
DX - disciplinary procedure or process
IX - investigation
Panel members sitting with EJ,
P1 - CM Russell
P2 - L Brown.

Observers have not yet entered the courtroom so there will be an unknown delay in proceedings this morning.

We'll keep you updated as far as is possible.

Observers now being admitted, expect to begin soon.

JR - Jane Russell, KC, barrister for respondents.
Correcting spelling.

Observers are being admitted to the on line facility. The judge and panel members have arrived.
J - questioning another document submitted by Rs,
JR - explains an article from Fair Play for Women.
<J leaves the room to get his notebook>
JR resumes cross examination of SP.

JR - y'day we discussed DU had been given permission to use female CR and you knew that because you had been told. Let's look at the advice obtained from ED.
ED - Equity and Diversity.
Now gone to the pleaded case,
J - clarification, which code of practice is that?

JR - should I get a copy for you
J - it's up to you, what you put before me
JR - its from the code of practice. The advice is that 'transsexual people should be treated in the gender that they are performing' do you agree with that
SP - I don't agree with that

JR - I know you don't agree. But to you agree that this the advice on which the permission to use the CR.
JR - you say you have been directly discriminated against,
SP - yes
JR - sets out hypothetical scenario of male nurse, male CR and transman using the CR. So you were

treated the same.
SP - under those rules, yes.
JR - your night shift on Christmas Eve; went from 4:30 to 8 am. Now reading out contemp note from DU; DU going off shift at midnight, incident occurred at approx midnight,

referencing changing room layout, entrance one end, lockers on the left, toilet cubicles, sinks are in between the lockers and the door please.
SP - yes
JR - It's your position that when you entered the CR DU and 2 other people were there,
SP - yes

JR - 2 others in CR with DU, trainee GP and nurse.
SP - yes
JR - you were there because you needed clean clothes
SP - yes
JR - before the interaction occurred, the other 2 left.
SP - yes,
JR - So DU came out of the toilet and was washing hands,

and that's when you were speaking to DU.
SP - the others were still there when DU came out and started washing hands
JR - you were standing by the pink rucksack, the lockers between DU and the door, blocking her exit
SP - I wasn't blocking DU exit

JR - now going to detailed notes of q&a for IX on 30 August 2024, interview of SP with investigators, you were being asked about positioning. You say 'he' was closer to the door. He is a ref to DU, yes?
SP - yes.
JR - but that's not the answer you gave yesterday or a minute

ago. You said 'DU was at the sink, you were by your rucksack, you were closer to the door'.
SP - the convo had not started when DU was at the sink
JR - DU was at the sink, you were by your rucksack, you were closer to the door', that is inconsistent with what you told the IX

JR - let me be clear, when you told the investigators he was closer to the door, that was wrong
SP - it took DU seconds to step away from the sink.
JR - give me a direct answer or I will make a submission to the tribunal that you are being evasive.
SP - the convo did not start

then
JR - I'm still not clear on your answer
SP - DU dried his hands, took 2 steps, and started undressing, that's when the convo started.
JR - that is inconsistent with the IX. Reading out from DU note; convo started while washing hands,
SP - that's not when it started

JR - that's DU account
SP - I disagree
JR - you started convo, that's different from your normal practice where you would leave the CR,
SP - yes
JR - but it's consistent with your statement that you would challenge DU on next encounter if nothing changed

SP - I did not challenge, i was asking for understanding,
JR - you could have chosen not to say anything
SP - I could
JR - knowing that DU had been given permission to use CR, you could have gone to management and followed
SP - I wasn't sure of the protocol, I had hoped to get

guidance from my line manager.
JR - you're a member of the union arent' you
SP - yes
JR - you could have asked your union for help
SP - I could have
JR - but you didn't. You're not a rookie nurse are you, you are well aware of how to raise issues with management,

SP - I had no experience of this type of situation, no real guidance from my line manager
JR you could have decided to raise a formal grievance
SP I could have
JR but you didn't
SP I didn't want to come to this point
JR this was allowed by management

JR why did you raise it with DU
SP - because I was uncomfortable and unhappy
JR you wanted to have a confrontation with DU, didn't you
SP I did not, i wanted privacy
JR from the note, 'I felt destroyed' , your purpose was to have it out with her

and make DU feel bad
SP - no it was not
JR you set out to make DU distraught and that was what happened,
SP I don't know how DU felt, there were no signs of distress
JR DU remained calm
SP yes
JR you've said the DU started to undress, and that's not true

SP DU did start to undress
JR from IX report, they don't think it's likely that during or after that convo that DU would have started to undress in front of you, don't you agree
SP DU was unaware that I might speak to you
JR was washing hands when convo started

SP no it started when DU started to change
JR you said you felt intimidated, there was no reason to be intimidated, was there
SP I was alone in a CR with him
JR DU did nothing to harass you or threaten you
SP he was in the room with me
JR did you really feel intimidated

SP yes
JR why did you have this convo in the CR at midnight when alone
SP I expected DU to leave, and I didn't expect DU to say anything,
JR your answer is you thought DU would leave with the others, but they left while DU in toilet

SP - no, they left when DU was coming out
JR there was a pause between the others leaving and you beginning the convo, but you said you were scared of DU
SP - I didn't want to leave the CR because of the situation, suddenly starting menstruation
JR - you were so scared of DU

that you stayed in the room.
SP - i wasn't scared, I was in a humiliating situation, and I was intimidated
JR - there's no difference between being scared and being intimidated
SP - thats your interpretation
JR - back to DU note 'says she feels intimidated by me, women's CR

others feel the same. Told her I was very sorry'. DU acknowledging you felt intimidated.
SP - yes
JR that's an empathic response, DU understood your feelings , and had permission, why did you carry on to make the comments. You chose to make a number of comments, you chose to

carry on, why did you do that.
SP I was hoping that DU could understand how I and others felt, DU was sorry but appeared to show no understanding
JR I want to pick up on that, you had already told DU how you felt, it seems a odd choice to carry on

SP - DU showed no understanding, said had been given permission to use the CR,
JR - DU was simply asserting the truth that had been given permission
SP - that's correct
JR - i suggest that your purpose was not to create understanding but to harangue DU
SP - that's not right

JR - you called DU a man and have been calling DU a man, also your barrister and your solicitor are calling DU a man through out proceedings
SP -I have slipped up and said she a number of times
JR - 'she tells me I'm not a woman' did you say that
SP - yes

JR - do you accept that calling DU a man, that not a woman is likely to cause immense distress
SP - when I'm in the situation, feeling intimidated and embarrassed, I needed to explain that he was a man
JR - did not answer my question, is it offensive
SP - it's the truth

JR - the truth is it is profoundly offensive to call a TW a man, it undermines her dignity
SP - my dignity was also undermined by DU being in the DR
JR - you've ignored by question about DU's dignity
SP - my dignity as a female is important to me
JR aren't all human beings

entitled to dignity, and all trans people
SP - correct
JR - a transwoman is a man is a political belief, also possibly a religious belief,
SP - yes
JR - returns to NMC code of practice, says 'make sure you do not expect your personal beliefs (political religious moral) in

an inappropriate way.
SP - i called DU what he wanted to be called, I called him a man when I was under duress and he was in the female toilet
JR - you would refer to DU using female pronouns while on the ward at work, and when other people were around

SP - yes, when I could remember
JR - but when no one was watching you felt free to call him a man
SP - it was appropriate in the situation I was in, I felt he could understand,
JR - isn't that classic bullying behaviour - one way, when people around another in private

SP - it's like today, sometimes forget which pronouns to use.
JR - you don't admit to asking about DU's pronouns, although IX found that you did indeed ask about them. DU has been clear, they believed DU, not you.
<judge asked for page ref>
JR continues to read out note

from DU including q about chromosome. Is it your case that you didn't make that comment, or you don't recall.
SP - I don't recall asking that q
JR - could it be that you do recall but don't want to admit it, because it is so obviously offensive
SP - no
JR do you agree that if

you had said it, it would have been inappropriate.
SP - yes
JR - do you agree it would be an intrusive q, particularly a trans person
SP - possibly but a trans person would know that their chromosomes are, why would it be intrusive.

JR - now quoting from ED IX interview, says you asked about genes, do you agree
SP - I agree that someone else is saying that
JR - 'tells me she wouldn't change in front of men, has bad experience of men, then when I say I understand, she cuts me off and says that I don't

really understand and sympathise' did you do that
SP - I'm not sure about the exact words, but that was the substance of the exchange
JR - you said yesterday that DU was indifferent to you, but expressed sympathy, that's not indifference
SP - i was alone in the CR

in a difficult situation, it's like being alone with a GP
JR - my Q, y'day you said 'indifferent' to you, but displayed some sympathy to you actually
SP - she said that
JR - and then the note says 'she cut me off' , that's a rather aggressive thing to do

SP - normally yes but it wasn't a normal situation.
JR - after you cut DU off, you made the woman's prison comment,
SP - yes
JR - note says 'women have a right to feel safe, its just like that person in the prisons', you say that you were referring to Isla Bryson/Adam Graham

SP - yes
JR - a convicted rapist initially remanded to a woman's prison. You compared DU in the CR with you to a rapist being put in a woman's prison. It's offensive because it feeds a narrative that TW are sexual predators
SP - I was describing how the women felt being in a

prison with a man.
JR - the IX found that this was wrong. This could be seen as insinuation that DU posed risks, such as rape. That's what they thought.
SP - that's what they thought
JR - that's what they thought, that you were comparing DU to a dangerous predator

SP - that was not my intention
JR - but that may have been how it was heard
SP - it may have been
JR - referred to protocols, do you recall that
SP - DU said it once,
JR - back to contemp note of DU:

JR cont - 1st ref to raising concerns, 'please raise them formally' do you recall that
SP - I can recall DU saying something about protocols but I don't recall those words
JR - that's not actually true, DU did say follow protocols, etc
SP - that is not what I recall

JR - but DU wrote a contemp note, so DU recollection is likely better than yours,
SP - i didn't make any notes because I did not expect anything to come from the convo
JR - my point was that DU recollection likely to be better than yours,
SP - it may be

JR - continues reading out from contemp note; no other complaint, sorry SP is intimidated, don't want to have this convo here, sorry she feels this way
SP - DU told me there's a protocol and I had already raised it with my line manager
JR - you've just accepted that she did say

protocol and follow them
SP - I don't recall DU saying that
JR - reading from note 'I don't think is the right time or place, raise it through the appropriate channels', it went back and forth
SP - It's not correct, I wanted the convo to stop
JR - the person who most wanted

that convo to stop was DU, you started the convo
SP - i wanted DU to realise that it was unacceptable to be in the CR,
JR - you cornered DU and harangued them,
SP - if DU felt cornered could have left the room
JR - you dont' accept that DU repeatedly said 'I don't want to have

this convo'
SP yes
JR if that was the case, that could be intimidating
SP, yes it could
JR as with the other 2 incidents, DU did not touch you
SP - yes
JR - you spoke to DU in that way because you have very strong views on transpeople

SP - I don't have strong views on transpeople, I had a view on male people in the CR
JR - now on to interview of ED in IX, 'SP has very strong opinions and is vocal about them, including her admiration for Donald Trump'
SP - that's correct
JR - you do have strong opinions and

need to take care when expressing them
SP - I do not try to upset other people
JR - imposing your onions is a form of bullying isn't it
SP - I don't impose my opinions on other people
JR - you did impose your opinion on DU by saying that he's a man
SP - that's correct

J - time for the mid morning break, back in five minutes
Court rises.

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