Trans doctor had the 'right' to use women's room

Esther Davidson led the initial stages of the investigation into Dr Beth Upton's complaint

A transgender doctor had the right to use a female changing room under a health board's equality and diversity policy, an employment tribunal has heard.

Nurse Sandie Peggie took NHS Fife and Dr Beth Upton to tribunal after she was suspended over an incident in the female changing room in Victoria Hospital, Kirkcaldy.

Ms Peggie objected to having to share the room with Dr Upton - a trans woman - and claims her treatment amounted to unlawful harassment under the Equality Act.

Clinical nurse manager Esther Davidson told the tribunal that she took advice on the matter and was told the doctor had a right to use the female changing facilities.

Ms Davidson initially led an investigation after Dr Upton made a complaint of bullying and harassment against the nurse.

But she was removed from it about two months later when it was recognised that she would be a witness, and the probe was restarted.

Ms Davidson was not Ms Peggie's direct line manager, however, she oversaw complaints in the department. The two had worked together for 30 years.

Ms Davidson told the tribunal, held in Dundee, that Ms Peggie raised concerns about sharing a female changing room with Dr Upton with her in late August 2023.

The nurse manager said she felt "empathetic" and she would "look into it".

She looked up relevant polices and contacted NHS Fife's equality and diversity lead, who told her it was "Beth's right as she identified as a woman".

"I found nothing that supported me being able to exclude Beth from the changing room," she said.

"Beth identified as a woman and she was entitled to use the changing room."

Dr Beth Upton made a bullying and harassment complaint about Sandie Peggie

Ms Peggie's lawyer Naomi Cunningham asked Ms Davidson whether she would have "warned" the nurses that Dr Upton was trans.

Ms Davidson replied: "I didn't think there was any need because the staff had accepted Beth as a female.

"I didn't think there was any need to do any further communication. I just feel like we should not single people out because we're meant to be respectful of people's beliefs.

"I also didn't want to make Beth feel unwelcome in the department either."

The tribunal previously heard how the situation came to a head on Christmas Eve 2023 when Ms Peggie said Dr Upton should not have been in the women's changing room because she believed the doctor was a man.

Ms Davidson said it was "clearly a distressing situation for both Sandie and Beth".

When asked by Ms Cunningham if she had any reason to doubt whether Ms Peggie's feelings of intimidation and embarrassment were genuine, she said no.

But she added: "There are other nurses who go into the toilet cubicles to get changed because they don't like getting changed in front of other women."

Sandie Peggie was put on special leave during the investigation

Jane Russell, the lawyer representing NHS Fife and Dr Upton, asked her if she was aware of Ms Peggie's "beliefs".

"Sandie is a strong person," Ms Davidson replied. "She has views and I would say this openly, Sandie can express herself if she likes something or doesn't like something.

"I didn't know her belief on transgender but I do know she has strong beliefs on other things.

"She very much likes Donald Trump so we would know about that and some of his values."

Ms Cunningham asked whether a man who grew his hair, wore make-up and women's clothes was a woman.

"Not unless he was under gender changes and identified as a woman," said Ms Davidson.

"I'm not an expert on transgender women, I just have to be respectful of people's beliefs in line with my standards of professional conduct.

"It would give an indication he wants to be a woman."

Ms Peggie was put on "special leave" by her line manager after the Christmas Eve incident - meaning she was paid to stay at home - to avoid her "getting into a situation that could cause her problems".

Ms Davidson told the tribunal that human resources was unavailable due to the festive season.

On 3 January when HR returned, Ms Davidson told Ms Peggie she was temporarily suspended.

She said this course of action felt "safest" to avoid any further "confrontations".

During the meeting, she said Ms Peggie was "shaking" and "tense" and she declined to leave by a side exit, saying "I've got nothing to hide".

Ms Davidson said: "We only had heard Beth's account of what had happened. There was to be a formal investigation.

"In my 30 years I have never had to be involved in a formal investigation or lead a formal investigation."

Ms Peggie returned to work on day shifts at the end of March last year before returning to her normal night shifts.

The tribunal continues.