Regulator sends equality 'reminder' to NHS Fife

NHS Fife are currently involved in a tribunal with nurse Sandie Peggie

The equality regulator has written to the Scottish government and NHS Fife amid the ongoing row over single-sex changing facilities.

The Equality and Human Rights Commission (EHRC) said it had "reminded" the health board of its "obligations" under the Equality Act 2010 and requested to see assessments of policy.

Baroness Kishwer Falkner, the chairwoman of the regulator, also asked for a meeting with Health Secretary Neil Gray regarding the government's forthcoming NHS Scotland Guide to Transitioning policy.

The intervention comes after two weeks of evidence in an employment tribunal brought by Sandie Peggie, a nurse who objected to sharing a changing room with Dr Beth Upton - a trans woman.

Ms Peggie was suspended after an altercation with Dr Upton on Christmas Eve 2023 at the Victoria Hospital in Kirkcaldy. The tribunal is currently adjourned until July.

The equality regulator says health bodies must have an "accurate understanding" of how the Equality Act operates in relation to the provision of single-sex spaces.

Baroness Falkner said it had "reminded NHS Fife of their obligation to protect individuals from discrimination and harassment on the basis of protected characteristics, including sex, religion or belief and gender reassignment".

She added: "Under the Public Sector Equality Duty, all Scottish health boards must assess how their policies and practices affect people with protected characteristics."

Baroness Falkner said the regulator had asked NHS Fife to provide evidence of how its policies and practices prevented discrimination and harassment of staff based on those protected characteristics.

It also requested any information relevant to how the policies had been kept under review and any details on how the health board ensured the rights of different groups were balanced.

NHS Fife operates the Victoria hospital in Kirkcaldy

The EHRC also wrote separately to NHS Fife to stress that any new policies regarding "eliminating discrimination, advancing equality of opportunity, and fostering good relations" must be assessed.

It said the results of any assessments must also be published, and that it had not been able to find this information on the NHS Fife website.

The letter also mentions workplace regulations stating that changing facilities will not be suitable without separate spaces for men and women.

A second letter was sent to Scottish Health Secretary Neil Gray and First Minister John Swinney.

In this letter the EHRC stated it was important that the upcoming NHS Scotland guide would "faithfully reflect and comply with the Equality Act 2010".

In the draft NHS Scotland guide it states decisions regarding trans people using changing facilities should be "made on a case-by-case basis" and that "managers must balance the needs of the trans person to use this facility against the needs of other members of staff."

A spokesperson for NHS Fife said: "We acknowledge the letter from the Equality and Human Rights Commission and note its contents. We will respond fully to the commission in due course."

A Scottish government spokesperson also said it would respond to the letter in due course and added: "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."

This is a significant intervention from the UK's equalities regulator, the enforcer of the Equality Act.

The Scottish government has been saying all week that the guidance for groups like health boards is crystal clear; well the EHRC are the ones who wrote that guidance.

The fact they've felt this is a necessary move speaks volumes about how they feel it's being applied on the ground.

The EHRC has taken a position in the wider debate on gender; they intervened in the Supreme Court case about how the Equality Act defines women, arguing that the very law they enforce is unclear and needs to be amended.

Both that case and the Fife tribunal are going to be very closely watched in terms of how equalities laws are applied in future.