Thread by @tribunaltweets

We return for first afternoon session in Peggie vs NHS Fife & Dr Upton. Our previous coverage is here.
open.substack.com/pub/tribunaltw…

Judge and Panel have returned, we are waiting for NC to return.

NC returns.
NC - I do apologise. I misremembered 1:30. What I wanted to come back to you on after lunch is the simple question of timing. SP is off work with stress, this application has caused her further stress and anxiety and she was in tears today because of the prospect

of having to come back and give evidence. And she's been off on holiday and it was not the opportunity to recover that she was hoping for. Can I ask that you adjourn and consider the application, and decide today.
J - we do not have time to that today, to do this point justice

it needs additional time.
NC - can I finish my reasons
J - if I could do it, I would do so. If I am confident I can take a decision, I will do so, There's a reason for me to say so.
NC - I want to argue that there are countervailing reasons for why you should try to make a

decision today.
NC - if you adjourned and made a decision today, it's a minor disruption and you have already said that you will questions in writing. That allows for all parties to know your decision. If the application is allowed, we would want to get to the EAT before

your deliberation days. So, if the answer is no, then the disruption is minor. If the answer is yes, that would allow C to get an expedited answer from the EAT, possibly get an answer before your deliberation days. Other alternatives are very much worse and substantially

prejudicial to C and an infringement of her Art 6 rights. If you don't decide today but after your holiday, written subs would have to be written blind, any appeal would not be able to be dealt with before deliberation dates.
And if the application appeal was then successful

it would undermine the entire decision because it is so entangled with the pleadings. So all of this it might lead to a full re-hearing of this long and difficult tribunal. The ET is supposed to be 'good enough' and can be done less formally, the consequence of delaying your

judgment beyond today are significantly prejudicial to the C and wholly brought on her by the neglect and delay of the Rs and should not visited on her by them.
I note that the Rs have moved to amend the 2ndRs response. They may wish to amend their amended application.

Finally, 1 factual correction, the 'manifestation' defence may have been run in Bailley without pleading, but that is not apparent, it may have been in case management hearings.
CE reminds me to say 'or within the next few day's
J - I cant because I won't be here.

JR - it's in both parties interest that you deliberate properly, that is consistent with the overriding objective of delivering justice. It is inconsistent with that to suggest that you shoot from the hip or 'good enough'. The suggestion of a full rehearing is not a realistic

consequence of your proper deliberation. On the suggestion of further amendments, I'm going to give that some thought but they are not a given.
NC - we need to be clear that no objectional manifestation defence is raised, but it may be that JR needs to take instructions on

JR - yes, I will need to take instructions.
J - give me 5 minutes to have a think about this.
Court rises.

Judge and Panel return.

We've decided not to rule on the application today, it's an important one. It has a number of important points: does Higgs needed to be plead, does it need an amendment, it requires consideration of a number of cases, it is not in our view in accordance with the overall

objective of justice. Especially if it was held that the amendment was necessary but refused or grant it will change the position of the parties. Either R or C can appeal. And in either case, and the outcome of the appeal and the disposal will be the purview of the EAT.

The application to decide today will not be granted. We will attempt to decide at the earliest point, but that may not be before our deliberation dates in October.
The question now - it is 1:45 what do we do with the time left to us. Do we do questions or do we adjourn and do

them in writing.
<NC/JR both taking instructions.>

NC - can we have 5 minutes to discuss? My fault, I thought we could do by Whatsapp, needs a discussion.
Court rises.

Judge and Panel return.

NC - we are all agreed that the best thing to do this afternoon is to make progress with your questions. In a rare moment of agreement between the parties.
J - just to clarify we have made no decisions on the application.
J - first question - is it the point that the SC

case makes it clear that the under the EA no man can use a female changing room.
NC - yes, it's because of discrimination. The EA mandates employers exclude men from women's changing rooms because of indirect discrim. And direct discrim against men who might be denied access.

J - end of SC decision uses 'allow and permit' in para 212, 214, 220, 221 - these are all in the context of sched 3. They say you may exclude if proportionate. That seems to be hard to reconcile with your argument.
NC - the point of the exclusion of a TiM from a women's only

space is not on PC of GR, but on the PC of his sex. There is the permission to exclude someone with the PC of GR because of that PC. Easiest example of this is because of a TiW, she remains female, she would be entitled to use SSS for women, but may be excluded from those

spaces, because is sufficiently likely that person will cause distress. I say that those paras have nothing to do with this case. We are saying that DU should be excluded from those spaces because of his sex, he must be excluded because of his sex.

J - so DU could also be excluded from men's facilities on grounds of GR.
NC - yes, it might be because he passes well enough to infringe on male privacy. Para 217, many women in F CR, hospital ward, prison - it is hard to see how that....
J - is that in the context of bio male

NC - sorry, wrong para. Please read the last para.
<reads>
J - anything that says the 2nd R could not be given permission to use F CR in the Act
NC - nothing that says that explicitly but important to protect women from indirect discrim and harassment.

It is impossible to operate the sex based provisions of the act without sex because of threshold conditions. As soon as an employer admits to a man to a SSS it becomes a mixed sex space. So a man would have a claim for direct discrim.
J - doesn't say it in the act explicitly

NC - no, but it's only way that the threshold conditions can be operationalised for sex based provisions, per the EA and SC decision. Says 'likely to be so difficult as to be impossible'. If you don't exclude Dr U you lose your right to exclude Pete (hypothetical Pete).

J - Yorks Police, Appeal case, a person who has had all transition procedures, isn't it reasonable to ask to treat that person as acquired gender
NC - that case is before GRA but when courts were struggling to give recognition to Goodwin, the courts and Parliament reached

different conclusions. The courts imposed a high threshold, a narrow gateway to all the benefits of being treated as the opposite sex. Parliament chose a wider gateway to a much narrower set of benefits for the GRA. The gateway - to have lived as the opp sex, etc.

NC - I would say it's a dead letter by the GRA and EA. You may say that's a good thing because that's such a high bar, it's not possible to change sex literally, even a man has a neo-vagina, he doesn't have a vagina. He may be visually female but he is not female for all

purposes. The idea that no one could object to say an intimate search by that type of person, it's a good thing isn't.
J - so it's the GRA that causes it to be dead.
NC - yes
J - permitting TW to use changing room could never be justified. Is that correct
NC - yes

J - what factors are relevant
NC - the sheer enormous disproportionate numbers, admitting a man to a supposed woman only space makes it a mixed sex space for all the women who use it. One thing regularly said by the other side, is its an accommodation for a tiny tiny minority

but this comes back to bite them, but if you admit even one man, or one man from time to time, you are saying to all the women that they cannot trust the sign on the door. You say it to robust women who might be nudists and not care who sees them naked.

You say it to women who are modest about their bodies, you may have been subject to sexual trauma, who may be uncomfortable about their bodies. Even if you do case by case, if anything that is worse, the reason I say that is because it undermines the confidence of women that

they are really in a female only space even when they actually are. Women who have been subject to the most severe forms of sexual abuse don't just use rape crisis centres, they use toilets, CRs, gyms, etc. Let's take it to a rape crisis centre. Policy is 'everyone you will

meet her will be a woman' that is clear. And a woman who may be talking about her sexual trauma in a small room behind a closed door. And if it turns out she's talking to a man who has taken all extreme measures to appear to be female, even if she is fooled, she may found out

at some later date. What a policy like that does is make user not really sure that they are talking to woman. You are probably talking to a woman but maybe it's a man. That is extremely cruel to women, gaslighting. Women who have been subject to sexual assault are in the rest

of the world; they use toilets, CR, etc. But not just women who have experienced sexual assault. Women who have a religious commitment to modesty, who would be more modest in the presence of the opposite sex. This would open claims to discrim on religious and possibly race.

J - so if the Tribunal is not with you on this, do you invoke Art 8?
NC - Yes
<missed, noise>
J - do you say that it is a breach of Art 8, to not allow women SSS
NC - yes
J - specific case in E&W, not binding but could be persuasive, as a matter of principle do you agree

NC - yes
J - there is no equivalent in sched 3 provisions that apply to the workplace, how do we transpose those requirements to the workplace
NC - I say that what matters is the Art 8 analysis, bodily privacy, doesn't matter if its a workplace matter or not.

NC - the 'license' for employers to operate SSS is in Sched 3, it's not totally clear there are various ways by which we arrive there. I don't think there's a broad statutory protection in the EA to require SSS. By one way or another, sched 3 if workplace facilities are a service

or by Sched 29, it is lawful under EA to do what employers must do under the 1992 workplace regs.
J - those regs look like they are a criminal matter, it doesn't look like there is a civil aspect to them, do you agree with that
NC - I don't disagree with it just now, but need

more information. I will come back to you.
J - if it is only criminal how do we take into consideration
NC - by way of background information
J - do we have jurisdiction
NC - you don't have jurisdiction on a claim under the 1992 regs
J - does C have a claim under 1992

How do we determine a criminal liability matter
NC - no one is asking you to do that, I'm asking you to take account of the fact that R1 has an obligation to provide those facilities. I don't ask you for a remedy under 1992 regs. You could perfectly properly determine that R1

is in breach, that the PCP is not consistent with the 1992 regs. As you might make ancillary decisions about contract law in other disputes.
J - we heard R2 said believe a woman, in light of FWS it is not a permissible belief
NC - I say that in light of FWS, its a false belief

I don't think i want to go further than to say it may be a belief that is protected, that doesn't arise for your determination, if it did arise it might be argued that in the form in which DU holds its, you may recall DU said no obligation to disclose sex to someone who requested

a female doctor. It might not be found to be WORIADS but that is not for your determination.
J - R1 says no requirement to use CR
NC - it is reasonable treatment of female employees to provide them with female only CRs, it can't be reasonable to admit men

J - on discrimination, are you considering direct discrimination of GC belief,
NC - can I come back to you on that
J - I can see the consequences of that belief, but I was wondering if it was direct belief discrim
NC - what is the pool of affected people,

<apologies> question from just 'what is the pool of affect people'
NC - about 200 people in dept, but we never got a good answer about users
J - what is the group disadvantage
NC - no woman and no man can be confident that their SSS will be SS, the group disadvantage for women

is set out in the schedule as specific detriments.
J - what is MF evidence, if not skilled evidence, what is it
NC - it is the opposite end of skilled evidence, what the Tribunal doesn't usually hear from are non-experts. MF is not expert in the facts of the dispute in question

J - what do you say the evidence is?
NC - at one end is skilled evidence, expert, in the middle are witnesses to the matter in question, she is a witness of fact, all she's telling you about is facts so commonplace, C could have called almost any adult of sound mind to give that

evidence, MF is above average well educated in the matters in question, and she gave evidence that women are in general more fearful of men, men are larger and stronger than women, etc. Everyone knows these things.
J - you say there has been compliance with the practice direction

that she testified as to knowledge she had
NC - any woman could have testified to those facts, all women have experienced it, the risk assessment changes radically if it is a man or a woman.
J - Rs argue that there isn't a correlation between men and TW on the issue of risk

and the EA seeks to avoid stereotypes, what do you say to the suggestion that if the 2nd R is a higher risk, that is stereotyping.
NC - the whole concept of indirect discrim depends on stereotyping, in the EA, and the PSED, for example a height restriction impacts women more

than men. And so with the propensity to violence, MF data was from the ONS, men are more violent than women. JR said it was unreasonable to proceed on the basis that all men are or might be predators. Nevertheless we widely operate SSS, women don't want to get undressed

in the presence of men. And that's not just modesty and preference. The vast majority of sexual offences are perpetrated by men against women, including voyeurism and the like. And we operate SSS to mitigate the risk of those.
J - thank you I have some detailed qs for you

that I will send via email, citations and requests for cases. etc.
Let's take a short break.
Court rises.

End of first afternoon session.
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