Ministers urged to seek legal advice on draft NHS transgender policy

The Scottish Government has been urged to seek legal advice on a new NHS Scotland policy which would formally permit transgender staff to use single-sex spaces.

A letter has been sent to Health Secretary Neil Gray from campaigners supporting Sandie Peggie, a nurse who has taken NHS Fife and transgender medic Dr Beth Upton to an employment tribunal over a row about being forced to share female changing rooms.

The tribunal has heard NHS Fife’s HR department had advised Dr Upton had “the right” to use female changing rooms, despite Ms Peggie’s discomfort.

Ms Peggie was suspended after objecting to Dr Upton using the changing room on Christmas Eve 2023 when she was dealing with a “menstrual flood”, the tribunal heard.

The hearing in Dundee was adjourned last week until July, and campaign group Sex Matters said Ms Peggie was notified of another disciplinary meeting on the second day of her evidence to the tribunal.

In June 2024, Ms Peggie’s solicitor wrote to Mr Gray to claim NHS Fife’s policy was “failing to meet legal obligations” of the Equality Act 2010 and the Workplace (Health, Safety and Welfare) Regulations 1992, which requires employers to provide separate toilets, washing facilities and changing areas for men and women.

However a new NHS Scotland guide, due for release in 2025, says transgender staff must be allowed to use their “preferred facilities” unless there is a particular “case-by-case” reason.

A letter from Sex Matters said: “This guidance encourages NHS boards to flout the workplace regulations and ignore their legal obligations. It puts their employees at risk of unlawful harassment and discrimination, and boards at risk of substantial legal and reputational costs, as we are now seeing.

“NHS Fife confirmed in December 2024 that it would be adopting this guide as board policy as part of a broader policy on diversity and inclusion. The Scottish Government needs to urgently consider the legality of this guidance.

“No exception to the workplace regulations is provided by the Equality Act 2010.”

The letter is signed by representatives from Sex Matters, Murray Blackburn Mackenzie, For Women Scotland and Fair Play For Women.

The campaigners said they are “disappointed that the Scottish Government has sought to distance itself from recent events at NHS Fife”, and are “surprised and dismayed” Mr Gray did not “take this opportunity to satisfy itself that NHS Fife was complying with its legal obligations”, the letter added.

It urges Mr Gray “to make certain that NHS Scotland’s policies ensure that staff are treated fairly and consistently, and in line with legal requirements when it comes to separate-sex facilities”, and said “separate-sex provision for toilets, washing and changing is a basic expectation for everyone at work” and “should not have to be negotiated by individual employees”.

The letter adds: “No woman should feel under pressure to undress in front of a male colleague, however they identify, in fear for her job. Many women would feel deeply uncomfortable. But instead of protecting Ms Peggie, NHS Fife has treated her as the aggressor.

“Many women have told us they would feel afraid to speak up because they might lose their job. The burden of saying ‘no’ should not fall on the shoulders of an individual woman.”

The letter said: “No exception to the workplace regulations is provided by the Equality Act. While what the protected characteristic of sex in that Act means is currently subject of consideration by the UK Supreme Court, it has been settled law for three years that in the absence of a gender recognition certificate, an individual’s sex takes its natural common-law meaning.”

Mr Gray was also told he has “a responsibility to ensure that NHS Scotland does not promote unlawful workplace policies”, and he was urged to make an “unequivocal statement” supporting the right of NHS workers to expect suitable separate-sex facilities.

He was also urged to “instruct the chief executive of NHS Scotland and Scottish Government director-general health and social care, Caroline Lamb, to remind all NHS boards that they are expected to meet the 1992 workplace regulations”, and withdraw the draft guide and revise it.

Raising the issue during health questions at Holyrood, Murdo Fraser, Conservative MSP for Mid Scotland and Fife, asked Mr Gray if he would be seeking an assurance from NHS Fife “that they are complying with the law in relation to single-sex facilities for their female members of staff”.

Mr Gray said: “I obviously expect all public bodies to comply with the law, to ensure the rights of all their staff members are being complied with.”

Fellow Conservative MSP Stephen Kerr said that in June 2024, Mr Gray received a letter from Ms Peggie’s solicitor and said the Health Secretary has a “legal duty to uphold protections” for women in relation to single-sex spaces.

Mr Kerr said: “Did he [Mr Gray] challenge NHS Fife’s actions and seek assurances of full compliance with the law at any time?”

The Health Secretary said officials responded to the letter and “gave guidance to the measures that could be undertaken”.

Mr Gray told MSPs: “I’m not going to comment further on a live tribunal case.

“I think it is important that process is allowed to conclude, to allow for the due process to continue and to conclude in that process.”

NHS Fife has been contacted for comment. The health board has previously said: “NHS Fife considers it inappropriate to comment during the employment tribunal. It is important to recognise that at the heart of this case are two employees, who should be treated with kindness and respect. As an organisation, NHS Fife remains committed to upholding its duty of care to all employees.”

A Scottish Government spokesperson said: “The Scottish Government expects all relevant organisations to comply with the requirements of the Equality Act 2010.

“As employers, organisations may need to consider the impact of other legislation, such as the requirements of the law on health and safety in workplaces.

“The Scottish Government supports the separate and single sex exceptions in the Equality Act 2010, which can allow for trans people to be excluded when this is a proportionate means of achieving a legitimate aim.”