Thread by @tribunaltweets

This is the second afternoon session of Sandie Peggie v NHS Fife and Dr Upton.

J JR -to start with FWS, what do you say is impact of that case on our case - [sections]

J To summarise C conclusion - say can only read act construed by FWS can only use sss if aligned with that sex.
JR Impact on FWS on this case - Du couldn't bring sex discrimination case being

excluded from W CR but could bring GR claim.
J NC said not discrimination on sex
JR More likely a indirect discrimination case
JR Would need to be element of proportionality.
J you say nay or nay depending on evidence. NC says needs to keep sss to bio sex of those concerned

J FWS says limited to Sex assigned at birth. Bio sex = sex at birth.
JR It doesn't say what that entails beyond the act
J Wouldn't it be your birth cert
JR Could be. But doesn't go on to describe genitals, chromosomes etc
J What do you say
JR Difficult. From memory,

BMA have said terminology used here isn't medically literate. As a lawyer, not a medic - sex is complicated and nuanced.
J on vast majority of cases
JR Not complicated
J And with regard to R2?
JR Not complicated and not making that argument

J evidence we have is id ing as female...
JR No need to take instructions. FWS has had said it has re bio sex and DU in evidence not talking as a lawyer.
JR This is potential conflict of rights situation
J So how taken into account?
JR IB relied on statutory CoP to balance rights

J It's guidance not statutory
JR Laid before Parliament
J But not guidance. Code based on Part 3, in civil case. So in case between employees or employer?
JR Nothing covering this in employment practice code.
J Does that not tell us something?

JR Would have to check, if that was deliberate absence.
J On face of it, as matter of intent, Sched 3 no cover for purposes of employment.
JR May have felt not needed as no mirror of statutory provisions for Part 5. Unfortunate that there isn't equivalent guidance in

workplace re these sensitive areas.
J We have to play with what we've got.
JR. Yes. That's what IB looked at.
J Q is whether IB was right to. Have heard evidence that IB said R2 had right to use f cr? About balancing rights?
JR Problem is that we 'should' is in first sentence.

And then the rest of the para. That's when proportionality exercise comes in. IB dealt with matters on case by case basis. No blanket policy. She considered each time asked. This isn't situation where there was an ad hoc encounter where two people didn't know each other

JR Not like NC said c someone surprised by so at a rape crisis centre. It's absolutely right that balancing exercise is undertaken. When so is in moment of max vulnerability like discussing rape.
J So it's about balancing rights,
JR Y
J And who did that
JR IB. We've heard from

KS
J Did she give permission
JR She consulted IB. IB job to do research and consider issues. So did ED and ?MC - discussed with C what could be done and was right thing to do.
J Prior to KS giving permission, what did R do?
JR Can't recall if evidence was DU had used

CR before discussing with KS. If there was evidence DU using f cr before conversation with KS, was cos Du had been doing so before in NHS and cos DU was allowed to. IB evidence that most boards in EW and Scotland were doing the same.

J What do you say re burden of proof?
JR Will come back to you on that
J We didn't hear evidence that R2 met GRC requirements but you said R2 was in 2nd year or living in req gender. When started?
JR Jan 2022?
J was completed in Aug 22?
JR Will check and come back to you.

J Is there an Eq assessment
JR Will come back to you.
J VV. Nature of evidence
JR Like MF which I don't say was skilled evidence;. All MF had done was desktop research. Not a research expert. Has an agriculture degree.
J Same could apply to VV
JR Of Course. Only called VV cos

MF called. Both in different campaign groups, so only fair to give both sides.
J Looks like VV changed the standard declaration?
JR Not aware. Will look into it.
J Normally say these are facts within my knowledge.
JR WIll check
J Pool for PCP 1?

JRAgree with analysis with NC,

potentially 200 people but some changed separately. Can't help you with how much short of 200 number.
J What c PCP 2 pool
JR Permitting staff to use cr aligned with GI. Could potentially be everyone. But if only re T staff would be 5 people.
J Who's potentially affected

JR Could be everyone in hospital.
J C says propositions were conceded by IB in her evidence
JR Will need to come back to you. Don't think those are within judicial knowledge or that we have evidence in statistics. It tells us nothing c TW and therefore nothing c disadvantages

J Victimisation. C intimidated by presence of who she saw as male in f space. Do you agree is what C said.
JR Agree C said to Du was intimidated and that she said you're a man. Both recorded contemporaneously in phone notes.
J and She shouldn't be there. Why are those not

enough to convey claim of harassment.
JR Cos she didn't object to DU re that - not scared - chose to confront DU in cr at midnight alone
J If we find she was genuine in her claim
JR Not specific, but you could find within other sub sections.

J NC said c factual matters - government equalities office and code of practice. And research materials
JR Not sure what you mean? The medical papers c DSDs?
J Part of it.
[JR - missed]

J We will follow up with qs and qs of clarity and will be back to you when we can. Will have deliberations in mid October. Difficult to say when can hand down judgement, won't be before November.

NC When you hand down judgement would be very helpful to have notice of hand down date and embargoed copy of judgment a few days before made public. At least some notice.
J Will need to check with President. How many days would you like?

NC Five please. [all agree]
J Thank you for your work and help. Am aware of how much work goes into this. That concludes this part of the case.
[Judge rises. Ends.]

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