Thread by @tribunaltweets

Our afternoon coverage of Peggie vs NHS Fife & Dr B Upton is due to start at 1.20

Our Substack on the case can be found at this link:

https://x.com/tribunaltweets/status/1945391729764381128

A reminder on the limitations of our reporting:

Admonition from Employment Judge Kemp to any potential witnesses to avoid Tribunal Tweets coverage:

NC I'm going to start with a few qs re your answers to JR. You said ED had called you for generic informal advice re a trans staff member due to join the work force.
IB Yes
NB Isn't it right that ED told you she had a f member of staff uncomfortable at sharing cr with man

IB No
NC did have that conversation with ED
IB no
NC Confident about convo?
IB My july convo with ED was unspecific and informal
NC You were asked c how you arrived at advice given to NC. You relied on code of practice and no Fife policy. Did you give any thought to 1992 work

place regs.
IB No not at the time.
NC and since
IB Could have done things differently and would by looking at more - would now be reflecting more. Society has evolved since July 2023.
NC You were taken to guidance docs. Pretty widespread that staff allowed to use facilities

aligning to their GI.
NC [to bundle, NHS policy.]
NC Could we alter the air conditioning? [Judge leaves room and back - has made request]
NC NHS Highland policy - reads - t ppl may experience examples of discrimination practice. Anything in those examples that troubles you.

IB no
NC Is that still good advice
IB Think it's reasonable.
NC Example 2. Not to address or think of someone re their GI. Is that reasonable.
IB In terms of what individual staff think?
NC to say it's discriminatory for staff not to be able to think of someone in a way

[missed]
NC Are you aware NHS Fife has been a Stonewall diversity champion
IB They are not now.
NC Are you aware of that.
IB Not the details.
NC What do you know c the Stonewall div champion scheme/
IB Don't know anything about the scheme in detail. Presumably its a kind of

partnership?
NC You are not aware how many NHS trusts are part of it.
IB No.
[bundle discussion, including re supplementary bundle/s]
[Judge and panel have left the room]

[Judge and panel have returned]
NC That delay gives me a chance to slot qs in.
NC You were asked in chief c mtg in July, not sure exactly who was there - Belinda Morgan, a few others. Two meetings, the same ppl invited to both. At second mtg you say reminded that nurse

allowed her GC beliefs. An important point. Claimant's claim had already gone in, storm blowing up c how SP been treated.
IB That would be a way to describe it.
NB no one took notes at mtg
IB Teams mtg. Didn't take notes myself, don't know if individuals took notes.

NC Important advice you were giving. Wouldn't you normally take notes/email follow up
NC Are you sure you gave that advice or is it advice you wish you had.
IB Hundred percent I gave that advice.
NC ED contacted you in Aug 24
IB 2023
NC you weren't aware of ids of nurse and dr

IB No not until I was involved in tribunal side of things.
NC You are quite sure you didn't have that info from Kate Searle
IB Sure
NC You are HR rights lead. Obviously not a lawyer but should have reasonable grasp of subject.
IB Yes

NC [to bundle ] i/x notes of ED from mtg. ED interview with Angela Glancy. You will see your name - I phoned IB and asked what the trust position would be and IB said if Beth ids as f she is entitled to change in f cr.
IB I would have supplied generic advice. ED would have

applied it to the specific situation.
NC You didn't know anything about the person - whether f or m or any surgery etc
[Ib yes to all]
IB EHRC - entitled to use facilities that go with their lived gender
NC if he said he was a woman?
IB I based advice on statutory code of

practice.
[missed]
NC If not make up clothes, etc, what is it to live as the opposite sex
[misse]
NC NHow find out if someone is trans
IB Their view of own body and how id
NC So only their view
IB If someone said they were trans I would belive
NC If they lie
IB Anyone can lie

NC If a man is saying he's a tw as a lie, how would you know
IB Their actions, if they didn't fit
NC Is there something objective that would inform
IB Others may judge ppl on how they present but I don't.
NC You know nothing c this person, but if he says he's a tw he can use f

spaces
Yes, and a tm can use...
NC So a tw can use facilities for w and a tm can use ss facilities for men.
NC The rule you were operating, even if not written - all staff allowed to use facilities according to their GI
IB Yes
NC What did you look to to base that advice

IB all the policies I looked at. Was general across the board.
NC Did you give any thought to any other ppl whose rights might be affected by that.
IB Statutory code of guidance seemed reasonable, boards were using it, didn't seem to be problematic
NC Any thought to female

staff being adversely affected
IB Based my view on the code of guidance
NC So no thought to engaging women's Art 8 rights
IB No, based on statutory guide
NCNo thought to opening women up to eg sexual ..
IB Following all the other policies. No reason for me to think that.

NC You accept a man who isn't a tw to claim falsely he is
IB Anyone can claim falsely
NC Any man who is/isnt' a tw - we can't tell - can therefore use women's spaces by saying I am a tw
IB More complex. They would have to take some steps to convince are living as a tw

IB Someone who made no changes and had no logic to what they were doing, I would think otherwise.
NC But the logic. Woman in cr and man walks in saying I'm a woman and allowed to be here. Policy makes it impossible for her to object - can't distinguish between tw and man with

a ponytail.
IB We didn't have a policy in Fife.
NC Your advice - don't have to call it a policy
IB If someone has a concern should raise it with their management and steps would then be taken.
NC Being surprised by a man in cr would be worse if the woman had history of sex

assault.
IB Any concerns, should raise with line management.
NC Do you know proportion of staff have suffered sex assault in past
IB Don't have that info
NC You don't collect it
IB No
NC Do you know how many women in your staff would be likely to have suffered pas sex assault

IB No
NC efusal to provide sss is conduct related to sex
IB yes
JR That's a legal q. She's not a lawyer.
NC It's a practical q. Whether ppl are m or f and who uses which space.
IB Interlinked with gender, if practice give t ppl access to space that are sex specific

[they agree gender reassignment is PC]
NC Beth Upton is what some ppl see as a tw.
IB Yes
NC Wants to be seen and treated as a woman.
IB That's your definition. Is a tw.
NC Do you agree lots of ppl say tw are men who want to be seen as women
IB y

NC So someone who thinks that will see DU as male
IB y
NC Sex realist person will see DU as a man - seeing sex, not interested in gender.
IB Y
NC A woman doesn't need to hold a thought-out philosophical position to see DU as a man
IB Ppl's views on gender will also be a spectrum

NC GI different from sex - someone who is naive to all that might just see what others would call a tw as a man dressing as a woman. Their eyes would say a man in woman's clothes.
IB But there will be ppl who pass and no one would be the wise.
NC But DU looks male

IB That's your opinion
NC Take a hypothetical person -
JR She's already answered. Some ppl pass and would be none the wise.
NC Your unwritten policy the board puts women to. Man are bigger and stronger than w
IB A bit. Can't generalise.
NC 98% of sexual crime is committed by

men. generally well known
IB y
NC Men generally more of a threat physically to women.
IB Y
NC And only men capable of rape
IB No Not true
NC Do you include tw in that
IB no.
NC Will address in subs

[missed]
NC men generally stronger/more of a threat to women.
IB When you talk c tw and tm risk is significantly less.
NC You are saying men in general are greater threat to women than vice
IB TW are different from other men in level of threat they present

IB Less of a risk, except for Isla Bryson
[quick q and a]
NC Man in woman cr is more intimidating than woman in male cr
IB Would depend on circs and ppl involved.
NC You don't agree with generalistion
IB Would be specific to individuals, but generally speaking yes.

NC [Probably need a break for court stenographers]
[Short break]

[court resumes]

NC I was reminding you that the advice was that ppl were allowed to use f cr and vice versa. Aims served - protecting and upholding DU rights / inclusion in workplace / provision in the workplace. Have you looked at grounds of resistance?

NC [ to bundle] Formal doc is board's response to the claims. This is the decision to allow R2 [DU] to use f cr is to meet those three aims.
JR This doc written by lawyers
Judge Any witness coming to respond to this
JR No
J Qs are good to ask if no other witness coming

JR Lawyer would be best person to address this.
J Not always a lawyer
NC [to IB ]You are the lead on this. Is there anyone you can think of would be better placed to answer qs than you.
IB re someone on granting access to tw to spaces. I would be, on advice, but not necessarily

the decision maker.
NC Can you help tribunal re which rights under human rights act being referred to.
IB Art 8?
NC How do you think this serves DU's Art 8 rights?
IB Do you have a copy of the Art 8
NC If you don't know, we should move on. If you are the best person

to ask re the decision, tribunal will need to make
NC You gave the advice. This is the board saying this is why decision
JR It isn't. Witness didn't say she mentioned Art 8 in her advice. Need to put Art 8 to her - she may understand the concepts.
NC can read out.
JR Should

be given to witness.
NC It's very short. Reads out.
J Do you understand.
IB Ye-es. Hard to hear you.
J Need to be fair to witness. Has asked to see it. There's also another piece referred to, would need that too.
NC Art 8 is in bundle. [they read]

NC What specific rights under HR act does the first of those pleaded aims refer to.
IB I didn't contribute to this response. Logic here isn't necessarily the logic I used when giving advice.
NC When you gave advice, were you think about ppl's rights.
IB Yes, inc t ppl rights

NC You advised not letting this individual use women's cr might be discriminatory
IB I said not allowing t person to use room not aligning with g i could be discriminatory.
NC When you suggested not letting t person use sss aligning with their go, were you thinking of discriminat

ion re the Eq Act
IB Yes
NC What did you think might be discriminatory under EA
IB Followed code of practice on that specific aspect
NC Code of practice you were looking at - was that c how employers should treat staff?
IB Specifies service providers. Not specifically

employers
NC Treating is as best approach?
IB yes
[missed]
NC Did you take view it was more inclusive to let t id m use f cr
IB To use them to use space align with gender
NC Not to women eg religious who can't agree
IB That would depend what they base beliefs on

NC not inclusive of women with religious beliefs who can't share with male
IB generally it's the inclusive approach. There will be a minority who may feel it's not inclusive cos of their specific beliefs but generally incl
NC Do you know how many staff have these religious

beliefs
IB no
NC Any steps taken to find out
IB no. Don't ask that
NC not inclusive of women with sex assault history
IB Would depend if they think a tw is a woman or not. That's only relevant to ppl who don't think a tw is not a woma
NC Any idea how many staff think that

IB no
NC Any steps taken to find out
IB no
NC Any woman with no particular beliefs re G I and is frightened to see a man walk in
JR We've had this q a number of times. Depends on passing - you wouldn't know.
NC Haven't had that q
IB WOuldn't think it accurate generalisation to

say women would see a man walk in.
NC Your inclusion depends on women seeing tw as women and acting accordingly
IB Don't need to have that view, Some ppl will lean more towards diversity aspects. Some w may not think twaw but might not mind them in the space

NC Not very inclusive of various categories of women.
IB No. But can't generalise about all the women in those groups.
NC What about the third aim. If necessary to protect R2 rights or for diversity and inclusion in workplace, is appropriate use of facilities

IB [not able to comment]
NC Will address tribunal re this.
NC Letting DU use f cr. That rule/practice has effect that no f users of cr has a genuinely ss space for changing.
IB It's not that black and white. Viewing of that changed over time. Lots of ppl in 2023 would have said

a t person doesn't make it not ss. Different now supreme court have rules.
JR Need to intervene. We will make obs re FWScotland - it's an abstract case re representation on public boards in Scotland. Not c toilets, etc.
NC Leaving FWS aside. On basis of biological understanding

of sex, no w has sss cr
IB Depending on your understanding of biological sex
NC if your understanding is women are f ppl and tw are not - bodies not ids - and DU with his male body is allowed to use that cr, on bio understanding no w had sss cr

IB Don't agree with your definition of bio sex. Much more complicated than that. Don't know anything c Beth's body. No one knows what their chromosomes are.
NC What you understand by tw
IB Someone ama b and living as a woman.
NC So, no one af ab had a sss cr

NC Using your terminology.
IB By allowing t ppl into a w space would potentially be ppl am ab allowed into that space.
NC By bio sex I mean sex assigned at birth
IB Not 100% aligned
[discussion re witness has answered]
NC DU needed somewhere to change.
IB y

NC TW can be harassed in male spaces...
IB I gave advice cos that's what the statutory code said and other boards policies
NC Is that the basis
IB It's my job to follow available guidance.
NC Was your guidance about securing DU dignity, privacy and safety
IB An aspect of it, y

NC Any other reasons to let him use the cr
IB Inclusion in workplace. Art 8.
NC Anything more concrete?
IB Not sure why what I said wasn't concrete.
NC Would providing him with a private space to change would have provided him with dignity etc
IB Asking him to to do wouldn't

uphold his dignity
NC But other women were asked to do that
IB Not by me
NC What would be those women's option
IB That would be their management. I would support if they came to me, but not my place to say where they should change

NC So what would you say if manager asked you what to do about a tw and a w both needing somewhere to change
IB I would refer to HR, and listen to concerns . This is hypothetical
NC Suggest you are ducking q cos see the problem. What's the alternative to this woman

IB Might be proportionate to move t person to another space if there are other gc ppl, or vice versa. Would have conversations incl with HR
NC It isolates the w who has to leave the cr just like it would DU
IB Could do
NC More proportionate way to protect DU would be to give him

a private space rather than denying all the women of a sss. Would have dealt with his Art 8
IB Disagree. Depends on the individuals involved.
NC Letting DU use the f cr, not really about dignity, etc - but about affirming him. Making f colleagues take part in pretence he's a w

IB Disagree
NC Worse. He was bullying them by doing so and board allowed it.
IB Disagree
NC So all women had to accede to demands of one man.
IB No concerns were raised so I thought advice was proportionate at that time
NC PCP 2 - allowing staff to use faculties aligned with GI

NC Statistical general differences between m/w. Allowing to id into opposite sex spaces bears more harshly on w than men
IB Don't agree with that in all ways
NC SP lost benefit of sss
IB I don't know what was arranged for SP specifically so can't comment

NC But you've said a separate space could be isolating, so that is a disadvantage
IB Potentially
NC [to bundle] We asked q c proportions men/women of board's employment. You said you thought board employed roughly 50/50
IB I said over 50%
NC Sorry, yes. A great deal over 50%

NC Board knew when giving theses figures of 3 staff with t id - roughly right
JR Only third employees provided info c gender status..
NC Fair assumption it's right as order of magnitude?
IB Can't use this data as representative of organisation. Our disability data isn't

recording isn't comprehensive, as I said
NC Not going to be in 100s
IB no
NC Have c 10,000 staff
IB Would be surprised if over 100
NC This signals to all these 1000s of staff they can't be confident that f spaces in hospital won't be f only
IB That would depend on how the w see

id of t ppl
NC All this done for validation of t staff at expense of 8,500 w
IB Not done for validation
NC Don't have to do this. Could offer t staff use of a third space.
IB If there was. Don't believe was a third space
NC Could you address their rights by a third space

IB Don't know how t ppl would fee about that - not discussed
JR need to put assumptions here directly to witness
NC You said you don't believe t ppl have been engaged with re feelings about third space. What about women
IB Don't know if women engaged with
NC You are HR and Eq

lead. Your job is to make sure board looks after all its staff. To cater for rights. What did you do to protect dignity etc of f staff
IB Back to code. They could be excluded if proportionate.
[Short break]

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