NHS Fife now says staff should use toilets based on biological sex

The Scottish NHS board at the centre of a high-profile legal battle involving single-sex spaces has said its staff should now use facilities that correspond with their sex at birth, rather than their gender identity.

NHS Fife has released an equality impact assessment after the UK’s equality watchdog told it to “progress corrective actions” on single-sex spaces without delay.

The health board stated its interim position will be to “provide a mix of suitable facilities” that follow the law.

The review says: “Where toilets and changing facilities are not in individual separate lockable rooms, separate toilets and changing facilities will be provided for men and women alongside additional gender-neutral facilities.”

It adds: “Where a facility is provided separately for men and women it should be used by people whose sex at birth corresponds with the facility.”

But the assessment also says that “no-one should be put in a position that they do not have access to suitable facilities that respect and protect their dignity and privacy”.

The document, released on Tuesday, warned that those undergoing gender reassignment risk being “outed” if gender-neutral facilities are limited or poorly located, leading to a risk of indirect discrimination.

Its states that the workforce at NHS Fife is majority female “meaning demand for women’s facilities is higher”.

It warns of a “risk of indirect sex discrimination if women’s facilities are underprovided, distant, or less private”.

The Equality and Human Rights Commission (EHRC) wrote to NHS Fife regarding access to single-sex facilities for staff on February 21, after the employment tribunal brought by nurse Sandie Peggie against the health board adjourned.

Ms Peggie was suspended after she complained about having to share a changing room with transgender medic Dr Beth Upton at Victoria Hospital in Kirkcaldy, Fife, on Christmas Eve 2023.

She was placed on special leave after Dr Upton made an allegation of bullying and harassment, and cited concerns about “patient care”.

Ms Peggie has lodged a claim against NHS Fife and Dr Upton, citing the Equality Act 2010, including sexual harassment; harassment related to a protected belief; indirect discrimination; and victimisation, and the case has been adjourned until September.

Baroness Kishwer Falkner, chairwoman of the EHRC, said NHS Fife previously admitted no equality impact assessment had been carried out and one was commissioned retrospectively.

It follows the UK Supreme court verdict in April which ruled that the definition of a woman under equality law refers to biological sex.

In a statement on Tuesday, NHS Fife said it was “committed to ensuring that all staff have access to facilities which are safe, lawful, and that respect the privacy and dignity of everyone”.

“As part of this commitment,” it added, “we have published an equality impact assessment (EQIA) in line with our public sector equality duties.

“This assessment forms part of our ongoing review of staff changing and toilet facilities across the NHS Fife estate.

“The review will ensure that our facilities comply with legislative and regulatory requirements.

“Our approach includes providing a balanced mix of single-sex, gender-neutral, and accessible facilities so that no staff member is left without access to appropriate facilities.

“NHS Fife will continue to engage with staff and partners to ensure our facilities remain fit for purpose and compliant with current legislation and guidance.”