Trans row NHS trust refuses to change female changing rooms policy
The NHS trust that allowed a trans doctor to use a female hospital changing room has refused to immediately change its practices after being challenged by the UK's equalities watchdog.
NHS Fife told the Equality and Human Rights Commission (EHRC) that it would not consider whether to alter its trans policies until after the conclusion of a landmark employment tribunal.
Carol Potter, the board's chief executive, said any recommendations that resulted from the case brought by nurse Sandie Peggie would be considered 'in partnership' with the Scottish Government and trade unions.
In a letter to John Kirkpatrick, the EHRC's chief executive, Ms Potter also insisted that the board's 'policies and practices align with our legal duties and our values'.
'Continual breach of legal obligations'
But a legal expert warned that the board's decision to allow trans staff to access women-only areas was a 'continual breach of legal obligations to provide single-sex changing facilities'.
Michael Foran, a gender law expert from the University of Glasgow, warned that its refusal to change its policy immediately could expose it 'to additional claims of unlawful discrimination from other employees'.
The Telegraph can also reveal that NHS Fife only replied to the commission after the watchdog was forced to ask twice for information about the health board's policies.
Baroness Kishwer Falkner, the EHRC chairman, wrote a second time to NHS Fife on Monday last week after receiving no reply to its initial demand on Feb 21.
Ms Potter wrote back three days later but failed to respond to the commission's request to see the board's equality impact assessment of its policy around 'the provision of changing facilities for staff'.
The legally required assessment would have examined the impact on women of allowing trans people to access female-only areas. However, it has been reported that the board had never conducted one.
The commission wrote to NHS Fife and the Scottish Government last month in the wake of the first part of the employment tribunal brought by Ms Peggie, which is due to resume in July.
Health board chiefs accused the nurse of misconduct after she challenged the presence of Dr Beth Upton, who was born male but identifies as a woman, in female facilities at Victoria Hospital, Kirkcaldy.
Baroness Falkner, the EHRC's chairman, said the watchdog had 'reminded' NHS Fife of its obligations about the provision of single-sex spaces.
She said the commission had highlighted the Workplace (Health, Safety and Welfare) Regulations 1992, which state that changing rooms will not be suitable 'unless they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety'.
The EHRC also demanded a meeting with Neil Gray, the SNP Health Secretary, over forthcoming NHS Scotland guidance on trans issues.
It had emerged that the guidance, which was to be rolled out across the Scottish NHS, warned that telling a trans person they cannot use their 'preferred facilities' could amount to 'unlawful discrimination on the grounds of gender reassignment'.
In her reply, Ms Potter said she wanted to 'provide clarity and assurance regarding our position on this matter'.
Referring to the 'significant media attention and public discussion' around Ms Peggie's case, she said that 'not all facts or considerations may be fully reflected' in what is being reported.
Ms Potter offered assurances that the board recognised its obligations under the Equality Act 2010 and was 'committed to fostering a safe, inclusive, and non-discriminatory environment for all staff and patients'.
She said that NHS Fife's procedures for dealing with trans issues complied with the law and the SNP government's national policies for Scotland's health boards.
However, she did not mention the 1992 regulations despite them being specifically referenced in Lady Falkner's letter.
Ms Potter said: 'We are fully aware of the need to protect individuals from discrimination and harassment based on protected characteristics and are committed to ensuring a fair and thorough approach.
'We currently believe it is important to allow the legal process to reach its conclusion before considering further actions regarding NHS Fife practices.'
Drawing up guidance
She also noted that NHS Scotland is drawing up guidance and 'once finalised and formally approved, this guide will be accompanied by a comprehensive Equality Impact Assessment'.
However, she did not mention whether any assessment had been conducted for the board's existing policy.
Mr Foran said: 'It is clear that NHS Fife is committed to maintaining its current practice, which does not provide separate sex changing facilities as is required under the Workplace (Health, Safety and Welfare) Regulations 1992.
'As a matter of law, this means that the ongoing practice represents a continual breach of legal obligations to provide single-sex changing facilities and could therefore expose NHS Fife to additional claims of unlawful discrimination from other employees.'
Sex Matters, a human rights charity that campaigns for clarity about biological sex, urged NHS Fife to 'gets its house in order'.
Maya Forstater, the chief executive, said: 'NHS Fife's response to the EHRC looks like an attempt to deflect criticism.
'It gives the impression of an NHS board that has calculated it's safer to cling to legally shaky policies motivated by trans ideology than to admit and fix its failure to provide single-sex toilets and changing rooms, as it's legally required to do.'
An NHS Fife spokesman referred to its letter to the ECHR when asked to confirm that it would not make changes to its policies until the tribunal was concluded.
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