Row erupts over trans medic's pronouns at Peggie tribunal
Ms Peggie's lawyer, Naomi Cunningham, has consistently referred to Dr Upton using male pronouns — specifically "he/him" — throughout the proceedings.
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Ms Russell — who has consistently used she/her pronouns when referring to Dr Upton — told the tribunal that best practice was to use an individual's preferred pronouns.
She said: "You should use the pronouns that are preferred — there is an exception if it is a biological male attack, but that is not the case here. No one has physically attacked anyone, especially Dr Upton attacking Ms Peggie.
"I am concerned about the fairness of the proceedings. Ms Cunningham's misgendering is creating a hostile environment for the witnesses and is confusing them.
"They are not used to hearing Dr Upton referred to with the pronouns he/him, and it is clearly discombobulating this witness and affecting her ability to give her best evidence."
Ms Russell urged the tribunal to note her concerns and asked Ms Cunningham to reflect on her language.
Judge Kemp then turned to Ms Cunningham, asking if she had anything to say in response, or if she needed time to reflect.
Ms Cunningham declined both, continuing her cross-examination using the pronouns "he/him" for Dr Upton.
Margaret Gribbon and Sandie Peggie (Image: Iain Masterton)
Later she put it to the witness, Angela Glancey, a senior charge nurse involved in the investigation, that Ms Peggie "was guilty of essentially the same heresy that has so exorcised Ms Russell in being prepared to say that Dr Upton was a man."
Ms Russell objected. She said Dr Upton was not a man and that she was "very concerned about the latitude being given to Ms Cunningham to be so offensive in this tribunal."
She suggested Ms Cunningham had called her a heretic.
Ms Cunningham disputed this, but the judge said his inference from the comment was that the lawyer had implied that Ms Russell was a heretic.
Ms Cunningham said: "In my submission, there is no sensible understanding of the words I used — in the order in which I said them — that could be taken as an accusation of heresy against Ms Russell.
"The proposition that I put was that Ms Russell, in putting forward the board's case and raising the objections she has, is objecting to what the board regards as a heresy."
Ms Cunningham said the "heretics" in this case was Ms Peggie.
EJ Kemp then asked Ms Cunningham what she meant by heresy.
She described it as an offence against, or a departure from, a required or compulsory creed.
The judge then asked for a definition of the word creed?
He said it was not in the Equality Act.
"I don't think I can be expected to cross-examine witnesses only using terms lifted directly from the Equality Act," Ms Cunningham said.
The tribunal then broke for lunch, but when they returned Ms Peggie's legal team said she was 'concerned about what we perceive as asymmetry in the tribunal's treatment of both sides."
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Ms Cunningham defended her remarks, arguing they were not pejorative and did not attack Ms Russell's professionalism.
'It is beyond doubt Ms Russell is exorcised on behalf of her client on their instruction and there is nothing pejorative about the word exorcised and I did not accuse her of heresy.
'One aspect of my claimant's case is she has been treated as a heretic deserving of punishment — heresy here is shorthand for someone who doesn't believe in and won't play lip service to the gender identity belief system.
'That is not a novel or fanciful idea.'
Ms Cunningham added she had not attacked the professionalism of Ms Russell but argued the 'converse is true', particularly in private sessions to a 'considerably greater degree'.
Ms Russell replied: "It is unfortunate what I have just heard did not contain an apology. I do not accept the characterisation of my intervention as being exorcised as that indicates a level of emotion that was plainly not there."
She said her concerns centred on fairness and the rights of Dr Upton to be treated with dignity and respect.
Jane Russell KC arrives at the tribunal (Image: Iain Masterton)
Dr Upton began transitioning in January 2022 and said they had been "fully out in all aspects of my life" since August 2022. They do not hold a gender recognition certificate.
During evidence, Dr Upton said: "I'm not male," and argued a certificate should not be required for a trans person's gender identity to be respected.
Ms Cunningham had previously told the tribunal she intended to "use real language in court", arguing it was appropriate to say "he's a man" when discussing single-sex spaces.
One complaint being investigated by NHS Fife was that Ms Peggie had misgendered Dr Upton. Last week, the board cleared her, citing insufficient evidence to support Dr Upton's allegations.
Last year, a tribunal found that Roz Adams had been constructively dismissed from Edinburgh Rape Crisis Centre for believing that those using the service should be able to know the sex of staff
It also found that the management had conducted a 'heresy hunt' against her.
The ruling said the decision to launch a disciplinary process against Ms Adams was because the centre's management wanted to make an example of her because of her gender critical beliefs.
Meanwhile, the tribunal heard that Ms Peggie had raised concerns about Dr Upton's previous conduct, particularly that, as the Herald on Sunday revealed last weekend, that the medic had kept logs of incidents with other colleagues.
It was put to Ms Glancey, who was tasked with investigating the complaints internally, that there was "evidence that Dr Upton was a known troublemaker and a bully".
Ms Cunningham asked whether these allegations should have been investigated further.
Ms Glancey rejected that she was "unfair" to Ms Peggie by not doing so and she argued that her specific role was to investigate the incident that occurred with Dr Upton on Christmas Eve.
The barrister said Ms Peggie's "troublemaker" claim against Dr Upton "flatly contradicts" the junior doctor when they said they had no previous incidents in the workplace.
Ms Glancey said she could not comment on this.
Meanwhile, JK Rowling has described Ms Peggie as a "heroine" and framed the tribunal as a class-based struggle against a "smug management" enforcing gender identity policies.
She claimed the nurse had "already won" and that women everywhere owed her a debt of thanks.
The Harry Potter author criticised NHS Fife staff who gave evidence, calling them "idiotic and cruel" and singling out diversity officer Isla Bumba and consultant Dr Kate Searle.
Ms Rowling accused them of supporting gender identity over biological sex, saying: "Genuinely kind people don't find themselves compelled to explain in court why they helped whip up a witch-hunt against a woman whose only crime was wanting to change her clothes without a man watching."
She claimed the case exposed the role of class in enforcing gender ideology like no previous legal proceedings.
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