Legal Counsel to the Christian Legal Centre Roger Kiska comments on the Sandie Peggie case
On 8 December, EJ Kemp issued his long-awaited ruling in the Sandie Peggie case, and not without much controversy.
The case of Sandie Peggie v Fife Health Board and Dr Beth Upton concerned a dispute within NHS Fife between Sandie Peggie, a female nurse with decades worth of unblemished service, and her employer, arising from the decision to permit a biologically male junior doctor who identifies as a woman to use the female staff changing room in the Emergency Department at Victoria Hospital, Kirkcaldy.
Ms Peggie, who holds gender-critical beliefs that sex is real, immutable and materially relevant in single-sex spaces, raised concerns after encountering the doctor in the women’s changing room on several occasions, including an incident around midnight on 24–25 December 2023.
Following that encounter, the doctor made a complaint against Ms Peggie for allegedly bullying her and for a patient care allegation involving both of them. NHS Fife responded by initiating a formal investigation, separating the two staff members through rota arrangements (which did not always prevent them from being in the same changing room), and issuing instructions limiting what Ms Peggie could say about the situation, while allowing the existing changing-room arrangements to continue for months.
After an unusually long and complex hearing, the Employment Tribunal upheld part of Ms Peggie’s claim and found that NHS Fife had subjected her to unlawful harassment under section 26 of the Equality Act 2010. The Tribunal held that the Health Board’s failure to withdraw or adequately manage permission for the male doctor to access the female changing room, its excessive delay in completing the investigation, its reference to unrelated patient-care allegations, and its overly broad gagging instruction together created a degrading and distressing working environment for the claimant.
However, the Tribunal rejected Ms Peggie’s claims of direct discrimination, indirect discrimination and victimisation, and dismissed all claims against the doctor personally. In doing so, the Tribunal stressed that the Equality Act creates no hierarchy of protected characteristics and that employers must carefully balance sex-based rights and gender-reassignment protections under the Equality Act on the facts of each case. A separate hearing will determine the appropriate remedy if not pre-empted by the appeals process. Ms Peggie has already publicly indicated her intention to appeal.
AI accusations
A significant cloud of controversy has surrounded the judgment and EJ Kemp, which has overshadowed the judgment itself. It has become readily apparent that EJ Kemp used AI in drafting the judgment. The first indication of this came when Maya Forstater, a campaigner and witness in the case, noticed that a quote in the judgment from a case that Forstater was the claimant in several years ago, appeared wholly made up. Other online sleuths have discovered other parts of the judgment which appear to be either AI ‘hallucinations’ or misrepresentations of fact which could have had a material impact on the outcome of the discrimination claims.
For now, the Tribunal has used the so-called ‘slip rule’ to authorise a correction on the Forstater discrepancy. Nevertheless, calls for EJ Kemp’s resignation or punishment continue. There is validity in these calls.
A solicitor, who does not hold the public trust to the same level as a judge, would face very serious consequences for doing the same if they have not taken reasonable steps to verify the material. The High Court has already cautioned that lawyers submitting fictitious AI citations could face sanctions including referral to professional regulators, costs orders, wasted costs orders, public reprimand, or even contempt of court proceedings. Contempt of court is a criminal sanction, which at the extreme end, could include imprisonment.
Why should a Tribunal Judge be treated any differently? If anything, the standard for professional responsibility, given the trust we place in our justice system, makes it even more important to punish judges for behaviour which would have serious consequences for any lawyer appearing before them.
One thing is for certain; this part of the story is far from over.
Failed discrimination claims
As to the judgment itself, Ms Peggie failed on her direct and indirect discrimination claims because the Tribunal was not persuaded that the unfavourable treatment she complained of was because of her sex or her gender-critical beliefs, as opposed to being the employer’s response to a workplace conflict and a complaint made against her.
On direct discrimination, EJ Kemp accepted that Ms Peggie is a woman and that she holds protected gender-critical beliefs, but it found that she was not treated less favourably because of either characteristic. The Health Board’s actions, he suggested—investigating the complaint, managing staff interactions, and issuing instructions—were taken in response to the junior doctor’s allegation and the perceived need to manage risk, not because Ms Peggie was female or because she held sex-realist beliefs. The Tribunal concluded that a hypothetical comparator (someone without her protected characteristics but in the same position) would have been treated in the same way once a complaint had been made.
On indirect discrimination, the Tribunal held that Ms Peggie had not established a provision, criterion or practice that placed women or gender-critical staff at a particular disadvantage and which could not be justified. The Tribunal accepted that NHS Fife was attempting—albeit poorly—to balance competing protected characteristics in a legally uncertain area. While aspects of its conduct crossed the threshold into harassment, the underlying policies and responses were found to be aimed at managing inclusion, workplace harmony, and legal risk rather than imposing a discriminatory rule or practice targeting women or those with gender-critical beliefs.
Criticism of the Trust
What is notable from the 1272 paragraph judgment was just how critical the Tribunal was of the first respondent, the Trust. First, EJ Kemp took the Trust to task for woefully failing in its disclosure duties, the result of which was an unusually prolonged trial and sloppy bundles, making cross-examination and navigating the evidence difficult. The Tribunal, at paragraph 37, described the failure as:
“.. a wholly improper and large-scale lack of full and appropriate compliance with the order for documents, which the Tribunal addressed in the Note following the hearing on 17 March 2025 but which despite its terms appears not to have been timeously and effectively acted upon by the first respondent thereafter, was a factor that we took into account as set out below. For a public body such as the first respondent not to comply with the orders granted by the Tribunal in such a matter is concerning.”
Despite the critical note however, the Trust received no official sanction because of its dereliction of disclosure obligations.
The Tribunal was critical of the Trust on several other grounds, which it summarises at paragraph 1102 and 1103 of the judgment. Most serious among them is the pattern of senior staff and the investigating officer to have prejudged Ms Peggie’s complaints in favour of Dr Upton, and the clear disparity in support it showed to Dr Upton when compared to Ms Peggie. The Tribunal further criticised the Trust for taking an inordinate amount of time for investigating Dr Upton’s allegations against Ms Peggie. There was also the issue of Esther Davidson, the Acting Clinical Nurse Manager, who on instruction from the Trust denied to the Tribunal that she was an investigator into the complaints surrounding Ms Peggie, despite emails and her own testimony contradicting her.
The changing room permission issue
Perhaps the most troubling aspect of the entire judgment is the Tribunal’s attempt to come to a balancing test to judge under which circumstances it would be permissible for someone who identifies as transgender to change in a changing room that does not align with their biological sex. The discussion can be read at paragraphs 944-953 of EJ Kemp’s judgment and focuses a great deal on the stage of transition of the transgendered person.
Paragraphs 952 and 953 are worth quoting at length:
(952) We concluded from all the above that whether to permit a trans woman to use a particular single sex space such as a changing room which meets the balance test depends on all the circumstances and includes factors such as the views of other staff as expressed to the employer, how many do so and in what terms, the stage of transition that the trans person has reached including what if any changes to the physiological attributes of sex the person have been made and which the trans person chooses to inform the employer of, the trans person’s appearance as can be observed by others, the wishes of the trans person, the options where other facilities exist and what the employer knows or ought reasonably to know.
(953) Our analysis indicated that as circumstances change, so can the lawfulness of the decision. We therefore applied the test to the facts before us.
The test has some clear inconsistencies with s. 7 of the Equality Act which does not require physiological changes for gender reassignment to apply. It also seems to make the false leap in reasoning that a biological woman would feel less embarrassed and more safe changing in room with a biological male who has altered their genitalia or breasts. But more than anything, there is no legal anchor upon with the test is based. As an Employment Tribunal creation, the test has no precedential value whatsoever and will almost certainly be overturned on appeal.
While EJ Kemp was seeking to be kind in his description of Dr Upton, the judgment nevertheless describes Dr Upton as being around 6 ft tall, with a pronounced Adam’s apple, and a receding hairline. In the second respondent’s defence, it was implied to him that he could use the female changing room by the Trust. This is a conflict that was manufactured by the Trust. Nevertheless, any woman in the world would have the right to feel intimidated and embarrassed changing under such circumstances. It was not fair to place either Ms Peggie or Dr Upton in the situation they found themselves in. Even had Dr Upton altered his genitalia, none of that would have had any material impact over what happened in that changing room.
The Supreme Court Judgment on Sex and the Equality Act
A significant question remains following the ET’s judgment as to how this leaves the Supreme Court’s ruling in For Women Scotland Ltd v The Scottish Ministers. The Supreme Court held that the terms “man”, “woman” and “sex” in the Equality Act 2010 refer to biological sex rather than legal or “certificated” gender, meaning that a person with a Gender Recognition Certificate is not a “woman” under that Act for these purposes.
The premise behind EJ Kemp’s ruling is that FWS does not necessarily mean employers must create safe spaces for women in single-sex areas such as toileting and changeroom facilities.
First, as noted above, the Peggie ruling has no precedential value. Its value, and the controversy behind it, does not derive from precedent but from being the first newsworthy judgment since FWS was decided. The case will inevitably be appealed, and large portions of the judgment almost certainly will be overturned.
One thing is for certain; we know that at a minimum, FWS continues to mean that employers may justify policies on single sex spaces based on biological sex. What remains uncertain is whether the judgment requires employers who follow the NHS’s approach to take stronger steps to protect women. The ET judgment in the Peggie case does nothing to answer that question in any definitive way. The case of the Darlington nurses, supported by the Christian Legal Centre, will be another major opportunity to help settle this question. The nurses, who finished their 3-week trial in November, were similarly forced to change with a biological male. When they complained about it, it was the biologically female nurses who were forced to change in a storage room to accommodate the biological male.
For its part, the EHRC has been highly political in how it has dealt with implementation of FWS. Originally, it consulted on updated guidance which quite firmly was a step in the right direction of protecting women, safety and dignity. Then it took the unusual step of removing the interim guidance from its website until Parliament approves it. For now, the EHRC advises duty bearers that they should: “continue to take specialist advice, as before, on their obligations under any relevant legislation, including the Equality Act 2010 and Human Rights Act 1998.”
The advice leaves a bad taste, because if the EHRC cannot be transparent about how FWS should be applied, and the first attempt by a Tribunal to address the issue appears to have been an abject failure, then leaving these decisions to individual lawyers risks inviting unnecessary and costly litigation.
Conclusion
The Sandie Peggie ruling has been unusual to say the least. The case has become a topic of conversation across the nation for all the wrong reasons because of the allegations of AI use and factual inaccuracies. What appears clear however, is that the holding itself, which has been unpalatable for both sides of the dispute, will not have any meaningful effect moving forward. The case will instead be remembered for how the judge wrote his opinion, not the judgment itself.
