NHS Fife staff told to use toilets based on 'sex at birth'

NHS Fife has changed its policy on the use of single-sex spaces including toilets and changing rooms

Staff at a health board involved in a legal case over single-sex spaces have now been told to use facilities which correspond with their sex at birth over their gender identity.

NHS Fife published an updated policy on the use of changing rooms and toilets after the UK equality watchdog warned it would "enforce" a Supreme Court ruling.

A judge is considering the next steps in an employment tribunal brought by nurse Sandie Peggie, who claimed she was treated unfairly by the health board after complaining about sharing facilities with transgender doctor Beth Upton.

The Scottish government said it had written to all health boards to "reinforce the importance of ensuring the law is followed".

An NHS Fife spokesperson said it would provide a "balanced mix of single-sex, gender-neutral, and accessible facilities".

The health board published an Equality Impact Assessment (EQIA) on Tuesday, which states facilities provided "separately for men and women" should be used by people "whose sex at birth corresponds with the facility".

However, the review also said no staff member "should be put in a position that they do not have access to suitable facilities that respect and protect their dignity and privacy".

In April, judges at the UK Supreme Court ruled that sex was defined as biological under UK equalities law.

The health board added should "individual separate lockable rooms" not be available, "separate toilets and changing facilities" would be provided for men and women, alongside additional gender-neutral facilities.

A spokesperson for NHS Fife said: "NHS Fife is committed to ensuring that all staff have access to facilities which are safe, lawful, and that respect the privacy and dignity of everyone.

"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."

Sandie Peggie has taken NHS Fife to an employment tribunal in a row over single sex spaces

NHS Fife's workforce is majority female, the review said, meaning demand for women's facilities is higher.

It also said LGBT+ staff "may feel less safe in communal spaces if harassment risk is not managed".

Helen Joyce, director of advocacy at campaigners Sex Matters, said: "This long-overdue move by NHS Fife to bring its policy on toilets and changing rooms in line with the law is essential for the safety, dignity and privacy of all staff.

"Women's toilets and changing rooms are not places where female staff should be required to affirm the gender identity of their male colleagues."

Campaign group Scottish Trans said that NHS Fife's updated policy was "really disappointing".

Manager Vic Valentine said: "I think that ultimately it's going to mean that trans members of staff who work for NHS Fife are going to feel significantly more excluded and unwelcome at work.

"And perhaps worried that they're going to be outed to colleagues about being trans, who perhaps they don't know well enough to share that information."

Ms Peggie took NHS Fife and Dr Upton to a high-profile employment tribunal alleging she was unlawfully treated under the 2010 Equality Act.

Ms Peggie claimed that she felt uncomfortable around Dr Upton – who was born male but identifies as female - in a changing room in 2023.

Dr Upton later complained about Ms Peggie's behaviour, leading to the nurse being suspended in January 2024.

Ms Peggie was cleared of misconduct following disciplinary proceedings by NHS Fife in July.

'Interim guidance'

In a letter to health boards, the Scottish government's director of the health workforce, Gillian Russell, said it had moved to an "interim version" of its trans and non-binary equality and inclusion policy.

She said this had been done "in line" with its legal responsibilities, but encouraged health boards, as their own legal entities, to seek their own legal advice.

A Scottish government spokesperson said: "Following the update to corporate guidance and schools guidance, we have written to health boards to reinforce the importance of ensuring that the law is followed, and the Supreme Court judgement implemented.

"Application of the law following the Supreme Court ruling remains a matter for boards, in accordance with their own legal advice."

A spokesperson for the Equality and Human Rights Commission said: "The publication of an equality impact assessment on the provision of single-sex staff facilities was among the corrective actions we directed NHS Fife to take.

"This is essential to protect NHS Fife staff from discrimination and harassment on the basis of protected characteristics, including sex, religion or belief and gender reassignment."