Thread by @tribunaltweets

Peggie v NHS Fife & Dr Upton will resume this morning at 10 am. Jane Russell KC for NHS Fife will finish her closing submissions. EJ Kemp and the Panel will ask questions of the legal teams.

Our previous coverage can be found on our Substack here. It includes links to the skeleton arguments, submissions and speaking note for Naomi Cunningham acting for Sandie Peggie.
open.substack.com/pub/tribunaltw…

We have requested similar documents from the Respondents but have had no reply.
For direct access to the individual documents:
docs.google.com/document/d/1yy…

Skeleton argument
drive.google.com/file/d/18yIqWc…

Closing submissions
drive.google.com/file/d/1kzAYvb…

A reminder about our reporting. Submissions are difficult to report in a coherent narrative. Lawyers and the judge are discussing case law familiar to them, and oral submissions are less comprehensive than written submissions. We only had NC's subs yesterday late afternoon.

Judge's admonition

Abbreviations

Additional abbreviations
SSS - single sex spaces
A8 - article 8 rights under the Human Rights Act

We expect to report from 10 am.

The Judge and Panel have arrived.

J - right
NC - sorry to jump in when floor is JR's, but I've seen an application from Rs to amend grounds of pleading, it needs to be dealt with in JR's hour of time remaining for submissions.
J - what does JR want to do with it
JR - I want to complete my closing and then

address it. But it will take an hour to complete my closing. And then do it.
J - that is contrary to what NC asked.
JR - yes,
J - how long will you be
JR - an hour to complete, plus 10 to 15 minutes to discuss amendment
J - it's an even if, we do need to amend....

JR - yes
J - NC how long will you need
NC - 15-20 minutes
J - do we have to do this today, can we do by written subs
NC - I would ask you to do it today
J - could we do it by written
NC - that would increase the prejudice to the Cs, because we would insist on add'l evidence

leading to more hearing days, which could not be listed for some time, I strongly suggest that you deal with today.
J - we will hear subs to completion, we will then have a break, we will then hear the application and opposition, and it may be that I need to deal with them on

the papers, we need to hear both these things and then see what we are able to decide. We will complete the submissions and the application first.
NC - I suggest that you litigate the prejudice to the C by limiting JR's time for subs to 45 minutes,
J - why
NC - the hearing has

been tightly timetabled, it's been going on for months, this matter should have been raised then. I ask you to mitigate prejudice now.
J - I don't think that's fair, we timetabled time for subs, I can't see that 15 minutes is going to make a big difference.
JR - can I begin

NC - I assume my right of reply comes last,
J - order: JR subs, application, response, we will see if we can make a decision, continue with questions and see what we have time to do
NC - my understanding is that it is normal for the party having the case to prove to have last

word
J - thats not how we do things
<interruption as audio is reported as poor>
J - returns, Apparently I can be heard by the two of you (advocates) cannot please move the microphones
JR - the A8 authorities recognise the steps the TP goes through to fulfill their GI.

I do not say that Goodwin says a TP can live fully as the opposite gender at any stage of transition. The Board is a state body that is responsible for the space in question a locker room. There is a conflict of rights, but it is not an ad hoc question between people who know

each other. The EHRC has been entrusted with the creation of the CoP, it also has a statutory basis, it was laid before Parliament. The ECHR will give due deference to a democratically decided measure. The CoP is such a measure. The CoP gives guidance on treatment of TP.

In respect of the PC of GR. Based on what NC said, her logic is that the current CoP renders the GRA a dead letter and FWS wrongly decided. A surprising assertion that the EHRC is in conflict with the EA and the Supreme Court. the CoP recognises the balancing act.

There is a balance to be struck, but the C's position is absolutist, that TW are men and can never have access to women's SSS. It is that position that is incompatible with A8 and unsupported by authorities. The factors that go in to balancing rights:

C's practice was to change in a cubicle, there were other facilities available, no one else complained and DU was 2 years into transition. On the Lux authority, it has treated TW as their acq'd gender in accordance with TL's submission. On Higgs, C's confrontation with DU on

Xmas eve was driven by anger not by fear. She said she was not afraid of DU. <JR now reading out DU's evidence on SP anger>. Volume is not the only indicator of objectionable conduct. And of all the comments, the prison's comment was the worst, the most objectionable.

1st R has set out its objectives in the response, to create a safe and inclusive working environment, to protect the rights of employees. It is axiomatic that protecting rights requires investigation of complaints. And it was important because of the seriousness of the

complaint, the special leave (days) and suspension (weeks) is not unreasonable.
Turning now to grounds, harassment. The fictional character Pete does not assist the Tribunal. Major difference between DU and Pete. Pete has not started any transition.

He was not subject to the PC of GRA. If the point is that no one should have that PC because of other's feelings, it would affect the PC of sexual orientation, beliefs and disabilities that are not visible.
The claim that DU set out to harass the C is absurd. It relies on

him being taller, middle class and a doctor. KS is taller than DU, is her entering the CR an act of harassment.
If generalisations about men are being deployed, height is a physical one. A propensity for violence has social, psychological consequences. Contrary to the C's

criticism. Sorry. The C says that Rs have not set out basis for admission of DU to the CR.
<Missed.>
In relation to purpose of the ancillary matters, C says that R1 was trying to punish her. All of R1 witnesses denied that.
C relies on the discussion of Xmas eve was a

protected act, and that it was a complaint of harassment. She was not harassed by this.
The victimisation case also fails by causation. She cannot show that detriments are not connect to the PC. The C has not shown a prima facie case that anyone was motivated by this.

Her case is that all happened because of her GC beliefs. She was either persecuted because of the rejection of her harassment claim or because of her beliefs, she can't have it both ways.
Authorities quoted by Cs do not take matters further because they do not address TP in CRs.

C says that SSS are a benefit because they are SS. The case relied on is about a male prisoner being stripped search, not about a trans person. C almost completely ignores the PC of GR.
The burden from the C is to establish group disadvantage. A SSS is not a benefit or a

detriment, unless there is evidence of it. There is not evidence that TW have a negative effect on women in CRs. And that most women would not have a problem with it.
LM's evidence that she was happy to share to CR with TP at rugby.

The C relies on J Phoenix report that compares TW to cis men and concludes that they retain male patterns of violence. She considers TW a subset of men, like left handed men, men who do engineering or were born under the sign of scorpio.
VV unchallenged evidence says that

there is not evidence that TW harm women in CRs.
The C says 'absence of evidence is not evidence of absence'. Courts deal with evidence, not mantras like TWAM. VV evidence is that the Euro Comm for HR, says that trans rights allows men to access women's SSS is not correct

and is a way to smear TP.
C will say the HR comm is also in the sway of GI theory, this is asking you to hear zebras not horses.
C has said that all of it's propositions are within judicial knowledge. None of the 4 props fall into that category.
Proportionality - there was

not a breach of 1992 regs, there were separate facilities elsewhere.
The 1st R was not asked to comment on why separate SSS facilities were made available.
The C asks you to draw inferences on production of docs. Most of the additions in July, were from C.

Docs were added not in June but in May. They were not scattered through the bundle, it was indexed.
There were no documents associated with various discussions, the IT search did not throw up anything further that what had been produced. The C has asked for a version history

of the Datix, but the Datix has all the dates on it in the bundle.
On the failure to produce Jamie Doyle as a witness, we produced other witnesses. On Angie Shepherd, she did not play a pivotal role in any decisions. On Michele Farrow, she had much absence

and it was more appropriate to call someone else from HR. In respect of the names of people who agreed with SP, these names were not made available until the end of the hearing. And it is not true that DU refused to cooperate, it was Cs rep that cancelled the intro meeting

with DU, unilaterally.
Two matters; contrasting character of C and DU.
Contr char is one of the inconvenient truth that hinders the C's case. We invite the Tribunal to conclude that C holds strong and intolerant views on people of colour, gay people and trans people. n

We invite the Tribunal to find that C had strong feelings about DU, she mocked him and disgust. C said that it was not unfair to refer to DU as a weirdo. There is no trace of the ordinary kindness referred to in the skeleton. It is consistent with the text messages in the

bundle, I draw the Tribunal's attention to the laughing and anger emotions in the messages. As to the bacon messages, she says it wasn't her, this is inconsistent with the recollection of other witnesses. And her views on Pakistani people, evidence by jokes and that she called

a member of the medical staff a Paki. Her racism bled into the workplace. It is wrong to call this a class issue. The two great social justice movements (Labour, unions) are class based.
No witness beyond the C had anything bad to say about DU. The allegations about

behaviour at another hospital were not even put to him. It is clear that DU was universally praised. DU described by ED as a very gentle caring person. C agreed that DU was a gentle caring person on x-exam. KS evidence that DU was kind and compassionate person in all ways.

No evidence to support that DU was smug. I asked you to observe, with quiet dignity, in which DU was compared with a torturer and misgendered and DU lived experience as a trans person dismissed as cosplay. There was not a lot of ordinary kindness taken by the C.

A few concluding remarks: kindness, thoughtfulness and respect are key values to the NHS. We should expect that nurses demonstrate all of these in prof settings. The confrontational way in which C approached and treated DU has no place in the dealings with someone going through

a transition process. C's behaviour in how she appreached and dealt with DU does not deserve the protection of the EA. We should recognise that persons come in all shapes and sizes and meet those with kindness rather than with aggression and confrontational.

I invite you to conclude that the prison comments went much to far and I invite you to dismiss all of the claims against both of the Rs.
J - thank you, that was helpfully close to 45 minutes. We will take a short break now.
Court rises.

End of morning session Part One.

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