NHS tries to ban nurse from calling trans doctor a man
The NHS is attempting to ban a nurse from referring to a transgender doctor as a man as part of a legal battle.
A lawyer acting for NHS Fife said an order should be imposed to prevent Sandie Peggie from using male pronouns or terminology to refer to Beth Upton, a biologically male doctor who identifies as female, in employment tribunal hearings which begin next month.
Jane Russell, who is also acting for Dr Upton, claimed that “gratuitous misgendering” from Ms Peggie and her lawyers had already caused “pain” and “harm” to her client.
She accused her opponents of “contributing to a climate of hostility and hatred towards trans people”.
She urged employment judge Sandy Kemp to impose an order which would require Ms Peggie and her legal team to refer to Dr Upton in “neutral” terms in future hearings, despite the court hearing that the nurse’s belief that the medic is a man was “central” to her case.
The case centres around three occasions in 2023, in which Ms Peggie encountered Dr Upton in the female changing rooms at Victoria Hospital in Kirkcaldy.
The nurse objected to this due to her belief that Dr Upton is male and therefore should not have been in female facilities.
There was a confrontation between the pair on the third occasion, on Christmas Eve 2023, in which Dr Upton said “[I have] as much right to be there” as Ms Peggie, a hearing on Tuesday was told.
The row led to Ms Peggie being suspended from work and investigated for bullying.
‘Climate of hostility and hatred’
Ms Russell claimed that allowing Ms Peggie, her lawyers and witnesses to continue to “misgender” Dr Upton would amount to “state-sanctioned harassment”.
Ms Russell said it was “simply a matter of courtesy” to use a person’s preferred pronouns and claimed it was “troubling” to see the “repeated and deliberate misgendering” of Dr Upton in the case.
“I find that very concerning, and it caused the second respondent [Dr Upton], much pain and much distress after the last hearing,” she said.
“I’m afraid the way the claimant and her representatives are conducting this case is a form of activism, that in my submission, is contributing to a climate of hostility and hatred towards trans people, which is actively harmful and has actively harmed the second respondent. It shouldn’t be allowed.
“It is simply not acceptable for a party to litigation and a witness to face harassment in the course of a tribunal hearing.”
Ms Russell cited non-binding guidelines which state that courts should not be “a forum for abuse” and that as a “basic principle” language to refer to LGBT people should be in line with their own wishes.
She told Mr Kemp: “Certainly, I would feel very uncomfortable being a party to state-sanctioned harassment, and I urge you not to go down that path.”
Ms Peggie’s lawyers said they were not seeking to “police” their opponents’ language by forcing them to use male pronouns, but urged the court to refer to Dr Upton in gender-neutral terms, as “Dr Upton” or “the second respondent”.
They branded the attempt to restrict their own language as “wholly unreasonable”.
‘Believed she was speaking to a man’
An attempt by the health board and Dr Upton to hold proceedings behind closed doors, and to prevent the medic from being named in any written judgement, has already been thrown out.
Ms Peggie states that when she first met Dr Upton in August 2023 she “believed she was speaking to a man” and that patients at the hospital also thought the A&E medic “looks like a man”.
One one of the occasions she encountered Dr Upton in the changing rooms, the nurse claims she was dressed in just a bra and trousers.
Dr Upton denies that it is obvious they are transgender and has said not all staff at the hospital were aware that was the case.
Naomi Cunningham, representing Ms Peggie, said: “This question of whether Dr Upton is a woman, in any meaningful or salient sense, is right at the heart of the claimant’s case.
“The claimant says he’s not a woman, he’s a man, and that’s why he shouldn’t have been in the female changing rooms.
“The claimant can’t put her case, clearly and forcefully, without using correct-sex pronouns, as opposed to preferred pronouns.
“We don’t seek to police Ms Russell’s language, they are entitled if they wish to use preferred pronouns, even if they are counter-factual.”
Mr Kemp said he would issue a ruling on the issue of language in the coming days. The full 10-day tribunal is due to begin on February 3.