Nurse asked trans doctor using women's lavatories ‘what genes they had'

Telegraph

15 hours ago

A nurse who confronted a transgender doctor using a female changing room behaved in an 'unacceptable way' because she asked 'what genes' the medic had, an employment tribunal has been told.
Gillian Malone, the head of nursing of NHS Fife's medical directorate, said Sandie Peggie should have raised her concerns in a different way as 'it sounded like a really unpleasant conversation'.
Pressed on what was unacceptable about Ms Peggie's conduct, she said the nurse should not have asked Dr Beth Upton 'what genes did she have.'
Ms Malone argued that the nurse commenting on the chromosomes of Dr Upton, who was born male but identifies as female, constituted 'harassment'.
She also criticised an alleged reference made by Ms Peggie to Isla Bryson, a transgender rapist, during the confrontation on Dec 23, 2023, at Victoria Hospital in Kirkcaldy.
Ms Malone admitted she could not recall seeing a risk assessment that led to the suspension of Ms Peggie.
She was also forced to deny there was a concerted effort to prevent Ms Peggie joining forces with colleagues who shared her opposition to Dr Upton using the female changing room.
The tribunal heard that Ms Peggie was warned to keep an internal investigation into the matter to herself after NHS Fife was contacted by the media.
However, Dr Kate Searle, who is Dr Upton's line manager, had emailed more than 20 consultants on Dec 29 2023, setting out the trans medic's version of events.
Naomi Cunningham, Ms Peggie's lawyer, said this meant that the 'integrity and confidentiality' of the investigation had already been 'hopelessly lost' and Ms Malone agreed it should not have been handled in that way.
The row centres on an encounter between Ms Peggie and Dr Upton on Dec 24, 2023. The nurse experienced a sudden and heavy period and feared that it had bled through to her scrubs.
The nurse entered the female hospital changing room to find Dr Upton and challenged the medic's presence. Within hours, a bullying complaint was lodged by Dr Upton.
In May last year Ms Peggie submitted a formal claim to an employment tribunal against NHS Fife and Dr Upton for sexual harassment, belief discrimination and victimisation.
The nurse complained of being required to share a single-sex space with someone she believed to be male and being victimised for holding a gender-critical belief that biological sex is immutable.
Dr Upton gave evidence during the first part of the tribunal, in February, and claimed to be 'biologically female'. However, it was not possible for the doctor to have held a gender recognition certificate in Dec 2023, meaning the medic was legally male.
It emerged on Wednesday this week, only hours before the tribunal resumed, that Ms Peggie had been cleared of gross misconduct by an NHS Fife disciplinary hearing.
However, the health board has so far ignored calls to stop contesting the tribunal, which is scheduled to continue for a further nine days.
Referring to the changing room incident, Ms Malone told Ms Cunningham that it was 'unacceptable for any colleague to confront another in that manner'.
She said that the nurse 'could have raised the matter but not as a confrontation' and suggested that she should instead have spoken to her line manager.
'A terrible incident'
Pressed what was unacceptable about Mr Peggie's conduct, Ms Malone said: 'Asking Dr Upton what genes did she have, how they came to be in the changing room at the same time together.
'It sounded like a really unpleasant conversation...a terrible incident.'
Ms Malone, told the tribunal she received a report on the internal NHS Datix system on January 3, 2024 about the changing room incident.
She said: 'At this time they were allegations, I did believe there was behaviour in there which could constitute bullying and harassment which were of concern and could require investigation.'
But Ms Cunningham suggested the reason Ms Peggie was suspended was 'because she had told Dr Upton she wasn't happy about him using the women's changing room'.
Ms Malone said: 'The justification for suspension was based on a risk assessment which wasn't undertaken by me.'
However, Ms Cunningham added: 'I'm suggesting that by challenging Dr Upton's presence in the changing room she was complaining he was harassing her; it was her rejection of that harassment which gave rise also to the disciplinary and suspension, it was her refusal to tolerate what he was doing.'
Challenged directly by the barrister, Ms Malone said: 'I don't believe Dr Upton sexually harassed Ms Peggie. I believe it was unacceptable behaviours, unprofessional behaviours which warranted investigation.'
NHS guidance at the time said that trans men and women were allowed to use the changing rooms that aligned with their gender identity.
But the guidance is being reviewed after the Supreme Court ruled in a separate landmark case in April that access to female-only areas should be based on biological sex. The tribunal continues.