Sandie Peggie-v-Fife Health Board

Published byLiam A Entwistle

10th December 2025

“Peggie -v- Fife Health Board – Behind the Headlines”

The decision in the Peggie -v- Fife Health Board case has just been released – all 312 pages.

Neutral observers were keen to see how the Tribunal applied the case of For Women Scotland v Scottish Ministers.

The case related to the use by a trans woman, Dr Upton (U) of a female changing room at Victoria Hospital, Kirkcaldy, administered by Fife Health Board (FHB) where U worked with Mrs Peggie (P), a nurse. FHB granted permission to U to use the changing room. The case focused on whether the permission was lawful under the Equality Act 2010, what happened during a meeting between P and U in the changing room on Christmas Eve 2023, and how FHB had dealt with a complaint made by U about what P said at that meeting.

The claims that were brought against FHB, and U, alleged breaches of the Equality Act 2010 in relation to
• direct discrimination,
• indirect discrimination,
• harassment (including sexual harassment and harassment by rejection of harassment) and
• victimisation.

All of these claims with the exception of the harassment claims were dismissed.

The Tribunal found that the FHB had harassed P by:

A. failing to remove the permission to share temporarily after P complained, until different work rotas meant they would not work together

B. taking an unreasonable length of time to investigate the allegations against P

C. making reference to patient care allegations against P; and

D. giving an instruction to P not to discuss the case, until a further message a little over two weeks later which confirmed that that applied only to the investigation.

Of these, A is the most significant and substantive.

The major issue was whether, considering For Women Scotland, it must be the case that, under the 2010 Act, U – as a biological male – required to be excluded from the female changing room, and so any permission given by FHB was necessarily unlawful under the 2010 Act. The Tribunal decided that the answer to these questions was that U did not require to be excluded, and the permission was not necessarily unlawful.

The Tribunal appreciated that there was a conflict between both P and U’s protected characteristics under the 2010 Act, saying that in order to make the Act workable a test was required to enable an employer to make a decision on use of single sex spaces that was lawful.

The test the Tribunal concluded should be applied was one of objective justification. This is the important bit for employers.

This test involves weighing a number of factors, including the options that were available to the employer, the extent to which the trans person had changed physiological attributes of sex, how the trans person appeared to others, the extent to which there were complaints from other staff, what the employer knew or ought to have known, and what the options for use of facilities were.

The Tribunal held that initially it had been lawful for FHB to grant permission as there had not been a complaint, but that once a complaint was made, alternatives should have been sought and the permission should have been revoked on an interim basis. The permission became lawful when a solution was later found, which meant that the claimant and second respondent were not at work together and not therefore using the changing room at the same time. No other staff made any complaint about the use of the changing room by U.

The tribunal will decide on how much P is entitled to at a later hearing. We will also need to see if this decision is appealed – but for now, the law is that permission for trans employees to use the changing room of their adopted sex can be justified based on a consideration of the prevailing circumstances.

It is vital that employees seek advice on this matter before granting permissions as it continues to be a challenging area of the law.