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.

That definition governs how single-sex facilities must be analysed. 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 in March 2024 made reference to patient care allegations against her.

The 'Judgment': The Tribunal upheld four complaints of harassment against the Health Board. Everything else failed: the remaining harassment complaints, direct discrimination, indirect discrimination, victimisation, and the whole of the claim against Dr. Upton personally. Remedy is to be decided at a separate hearing.

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): Mrs. Peggie raised her concern informally in late August 2023. The Tribunal allowed the Board about three weeks to investigate and decide, and held that the permission should have been revoked on an interim basis by 16 September 2023 [936]. From then until 13 April 2024 the permission failed the proportionality test, because a less intrusive measure was available [964]. Mrs. Peggie's perception of harassment on the two occasions in that period when she and Dr. Upton were in the changing room together, 25 October and the night of 24 to 25 December 2023, was therefore reasonable [965].
  • Period 3 (Lawful): When Mrs. Peggie returned to work on 14 April 2024, the Board arranged the rotas so the two were not working at the same time. This was deemed a lawful, proportionate solution.

The other three findings concern the Board's handling of Dr. Upton's complaint: an investigation that began on 5 January 2024 and took unreasonably long, a reasonable period being not more than six months; the reference to patient care allegations on 28 March 2024; and an instruction on 5 July 2024 not to discuss the case, which was not confined to the investigation until 22 July.

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. Leaving the permission in place while the complaint goes unanswered 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:

The lesson of Peggie is not that inclusion policies are unlawful, but that an inclusion policy which cannot flex when rights collide is not inclusive at all: it has simply chosen a side without saying so.

Corrected, October 2026: checked against the Tribunal's written reasons. The account of the unlawful period now gives the Tribunal's dates and reasoning, and the claims that failed are stated.