As I write, the first instance decision in Peggie v Fife Health Board is in the British press, with both apparent vindication for the Claimant (found to have suffered harassment) and the Health Board also protesting it was largely vindicated. What legal insights arise from this nuanced outcome? To understand Peggie, we have to look first at the Supreme Court’s decision in For Women Scotland Ltd v Scottish Ministers [2025].

The 'Context': Sex means Biological Sex

In that landmark judgment, the Court clarified a fundamental definition within the Equality Act '2010': "Sex" refers to biological sex. It held that a trans woman (even one holding a Gender Recognition Certificate) remains male for the purposes of the sex discrimination provisions in the Equality Act.

This distinction is important. It means that when an employer provides a "female-only" space, they are providing it for biological women. However, that doesn't automatically mean trans women must be excluded. It means that allowing access involves a conflict between two protected 'characteristics': the sex of female employees (and their privacy rights) and the gender reassignment rights of trans employees.

The 'Case': Peggie v Fife Health Board

The 'Facts': Sandie Peggie, a nurse with 30 years of service, held "gender-critical" beliefs—specifically that sex is immutable and that biological males should not access female-only spaces. Dr. Upton, a junior doctor and trans woman, had been granted permission by the Health Board to use the female staff changing room.

The conflict came to a head over several incidents, culminating on Christmas Eve 2023. Mrs. Peggie, feeling intimidated and embarrassed by the presence of a biological male while she was undressing, confronted Dr. Upton. The exchange was heated; Mrs. Peggie challenged Dr. Upton’s sex ("what are your chromosomes?") and made a comparison to a controversial case involving a trans prisoner.

The Health Board suspended Mrs. Peggie, launched a disciplinary investigation that dragged on for nearly a year, and eventually brought unsubstantiated allegations about patient safety against her.

The 'Judgment': The Tribunal found in favour of Mrs. Peggie on several counts of harassment by the employer.

Of note, the Tribunal applied a "balancing test" (derived from Bank Mellat) to the Health Board’s decision to allow Dr. Upton access to the female changing room. They broke the timeline down into three 'periods':

  • Period 1 (Lawful): Initially, granting Dr. Upton access was lawful. No one had complained, and the Board was aiming to be inclusive.
  • Period 2 (Unlawful Harassment): Once Mrs. Peggie raised a formal concern about her dignity and privacy, the landscape changed. The Board failed to pause or revoke the permission while they found a solution. By allowing the situation to continue knowing Mrs. Peggie felt violated, the Board harassed Mrs. Peggie. They failed to balance her rights with Dr. Upton's.
  • Period 3 (Lawful): Eventually, the Board adjusted the rotas so the two employees were never on shift together. This was deemed a lawful, proportionate solution.

The Tribunal also slammed the Board for the "unreasonable length" of the investigation into Mrs. Peggie (which took nearly a year) and for issuing vague instructions effectively silencing her from discussing her case.

What does this mean for employers?

This judgment suggests that "inclusion" cannot be a passive, blanket policy. It requires active management of conflicting rights.

  • No Automatic 'Right': Trans employees do not have an unqualified right to access the single-sex facilities of their acquired gender if it impacts the dignity and privacy of others.
  • No Automatic 'Ban': Conversely, there is no absolute ban. If no female staff object, access may be lawful.
  • The Duty to 'Manage': Once an objection is raised, the employer must act. Ignoring the complaint, or telling a female employee to "be kind," may amount to unlawful harassment. Solutions might include rotas, single-occupancy pods, or assigning different changing areas—but the status quo cannot persist if it violates dignity.

Relevant Case Law

The Peggie judgment relies on a specific ecosystem of case law regarding discrimination, definition of sex, and the proportionality of interfering with rights. Key cases cited 'include':

  • For Women Scotland Ltd v Scottish Ministers [2025] ICR 899 – Established that "sex" in the Equality Act 2010 refers to biological sex.
  • Forstater v CDG Europe [2022] ICR 1 – Established that gender-critical beliefs (that sex is real and immutable) are protected under the Equality Act.
  • Bank Mellat v HM Treasury (No 2) [2014] AC 700 – The source of the proportionality test used by the Tribunal to balance conflicting rights.
  • Croft v Royal Mail Group [2003] ICR 1425 – An older but relevant Court of Appeal case regarding trans employees and toilet facilities.
  • Chief Constable of West Yorkshire Police v A [2005] 1 AC 51 – Regarding the treatment of trans people in searches.