Edinburgh employment tribunal says no to trans anonymity order
An employment tribunal in Edinburgh has rejected a plea by Fife Health Board and a trans-identifying doctor for an employment tribunal case to be heard in private, and for the doctor’s identity to be anonymised.
Employment Judge Tinnion emphasised that:
“Potential public scrutiny of a witness’ evidence is an important part of the open justice principle, and it is right that witnesses should be aware of that when giving evidence as it provides an important incentive to give honest, truthful evidence.”
The employment tribunal claim is being brought by Sandie Peggie, a female A&E nurse at the Victoria Hospital in Kirkaldy, who was was suspended and then placed under a disciplinary investigation for a year after she objected to sharing a “women’s” changing room with her male colleague, Dr Beth Upton.
Sandie Peggie said:
“I am very pleased that the tribunal decided to reject the application of Dr Upton and Fife Hospitals Board to hold the hearing of my employment tribunal in private, and to anonymise Dr Upton’s identity.
“My case is about whether the hospital and Dr Upton subjected me to sexual harassment and discrimination by forcing me and other female colleagues to share a changing room with a man identifying as a woman. Going to employment tribunal is very stressful for all concerned, but everyone has the right to a fair and public hearing. Changing rooms are a place where we expect privacy. Courtrooms are not.
“I am grateful to my legal team and to Sex Matters, For Women Scotland, Tribunal Tweets and the press for intervening to ensure that the principles of open justice are upheld in my case.”
According to the General Medical Council (GMC), Upton graduated from the University of Dundee with a medical degree in 2021, and qualified in August 2022. The tribunal reports that Upton began publicly identifying as a woman in 2022 and started work at the Fife hospital in the A&E department in August 2023.
The rule 50 application
On 9th September 2024, the hospital and Upton applied for a legal order under “rule 50” requesting that the full hearing be conducted in private, and that Upton not be identified in the hearing or the published judgment.
This is an extraordinary request which undermines open justice by excluding members of the public, the press and others, including academics, HR advisers, lawyers and campaigners, from hearing evidence and arguments about an important case. As the tribunal said, it would “constitute a derogation from the principle of open justice of the strongest kind, and of the utmost seriousness”.
Sex Matters, For Women Scotland, Tribunal Tweets and the media (Associated Newspapers Ltd, Reach plc, Times Newspapers Ltd and the BBC as a group) all intervened in support of open justice. Sex Matters was represented by Beth Grossman of Doughty Street Chambers, and we are publishing our intervention. We argued that:
“Such an exceptional application requires exceptional justification. No such justification has been put forward. The application is supported by submissions which assert rather than prove the need for privacy and which ignore the public interest altogether. The application is not only flawed; it is also unprincipled. It underplays the significance of open justice and fails to set out the test of exceptionality (and indeed, much of the necessary legal framework) that applies. The test of exceptionality is far from met.”
The facts of the case
The hearing and the case management order on the rule 50 question sketched out the basic facts of the case.
Upton was allowed to use the A&E changing room that is used by female doctors, nurses and auxiliaries to change in and out of uniform. Peggie describes three encounters in the female changing room where she felt embarrassed because of encountering the male doctor.
On Christmas Eve 2023, Peggie and Dr Upton exchanged words after Peggie alleged that Upton started to undress when they were alone together in the female changing room. Upton then made an official complaint about Peggie’s behaviour, saying it was bullying and a “hate incident”.
The hospital responded by placing Peggie on special leave and then suspending her pending a disciplinary investigation into her “alleged unwanted behaviours”. When she came back to work it refused to guarantee that Upton or other men with transgender identities would not be using the women’s facilities. It is believed that Upton is still being allowed to use the female-only changing room at his place of work.
The full employment tribunal hearing, which starts on 3rd February 2025, will be to determine if this conduct was sexual harassment or harassment related to gender-critical belief, and whether it was indirect discrimination and victimisation.
A private matter?
Peggie said that when she first encountered Upton in August 2023 she recognised she was speaking to a man. She also said this was common knowledge:
“There had already been ‘chitchat’ at the hospital to that effect, and when she saw Dr Upton that was (or remained) her view based on Dr Upton’s appearance and presentation.”
Upton asks to be referred to by she/her pronouns and is recorded as female by the GMC. Upton is a male/man who identifies as a woman. Peggie said that Upton’s colleagues at work think Upton is a “trans woman”, and that patients think Upton “looks like a man”.
Upton reported experiencing occasional “micro-aggressions” at work such as “asking about trans people” and being occasionally “misgendered” by colleagues and patients. Upton also told the tribunal of being “cat-called” outside of work, but admitted that when this happened those who did it followed up by saying something “questioning” whether Upton is a woman.
Nevertheless, Upton told the tribunal that being a trans woman is “a private matter”. The tribunal reported that Upton said: “Her close family and friends know, as does her supervisor, but she does not accept that all staff at Victoria Hospital know she is a trans woman. She regards her transition process as private.” The tribunal accepted that “she will be upset and anxious if her status as a trans woman is publicly disclosed”. Upton spoke of fearing violence and the tribunal accepted those fears to be genuine, though it found no evidence that there was a real risk.
In support of the application for anonymity Upton submitted a GP’s letter which said: “I was sorry to hear that more recently at her new job within NHS Fife (Emergency Dept.) she has been the subject of harassment”; that Upton was being prescribed antidepressants and was seeking private counselling; and that the GP feared “further complications” if the hearing took place publicly. There was also a letter from a psychotherapist who treated Upton. The tribunal had significant reservations about the letter as it “made no clear attempt to maintain an appropriate professional distance” between Upton’s account and the facts.
Balancing privacy and other human rights
Rule 50 provides that a tribunal may make an order preventing or restricting the public disclosure of any aspect of proceedings “so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person”.
Article 6(1) of the European Convention on Human Rights protects the right to a free and open trial. It provides that:
“Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
The tribunal considered whether there was “a real and immediate risk to Dr Upton’s life or limb” from any third party and said that there was no evidence for this. Nor did it identify any serious evidence that “suggests there to be a real risk of self-harm if Dr Upton’s name and identity is publicly disclosed”.
It then turned to the question of whether the public disclosure of the fact that Upton is “a trans woman” (i.e. male) will interfere with the Article 8 right to respect for private life “specifically her status as a trans woman”.
Naomi Cunningham (who is chair of Sex Matters but is acting for Sandie Peggie in a private capacity as a barrister), representing Peggie, argued that Upton had no reasonable expectation of privacy on this matter because, Cunningham said, it is obvious in person that Upton is male, based on physical appearance and attributes such as height, hands, gait, hairline and Adam’s apple.
Employment Judge Tinnion said he did not find this obvious.
“The flaw in the submission is an implicit assumption that all men look male and have distinctive male physical attributes, and all women look female and have distinctive female physical attributes, hence if someone presents with some (or all) of these distinctive male attributes then those individuals are certainly (or at least highly likely) to be male.”
The judge accepted that “some patients” could perceive Upton was male, but the only finding he would make, based on Upton’s evidence. was that:
“There must be something about her appearance and presentation… which has led others on occasion who do not know her and patients on occasion who interact with her to question whether she is female or think she is male (hence the patient misgendering).”
Having found that public confirmation that Upton is a “trans woman” at the final hearing would be an interference with the right to private life protected by Article 8, the next question was whether that interference could be justified as necessary in pursuit of the rights and freedoms of others. The tribunal recognised that this was a conflict of rights without a halfway-house solution:
“There is no order the Tribunal can make which can protect both Dr Upton’s Article 8 rights and the Article 6 and 10 rights of the Claimant, the public and the press.”
It found that ordering Upton’s name and identity be kept anonymous would substantially fetter the Article 10 rights of the press and campaigning groups to report on the case, and the general public’s right to read and have access to that reporting.
The tribunal recognised that Upton’s “status as a trans woman” was not a secret – it is known by family and friends, colleagues, the hospital and patients who have heard it or figured it out. Even if an anonymity order is made, it said it is “likely that most people working at Victoria Hospital… will know or suspect that Dr Upton is the trans woman involved”.
In our submissions we argued that many instances of sexual harassment involve individuals who are “repeat offenders”, where complainants have been too frightened to come forward until the name is public. This is, in part, why the proposal that the names of those charged in sex cases should be anonymised has been repeatedly rejected by Parliament, and by the Court in Northern Ireland.
Although no particular suggestion is made that Dr Beth Upton – either as a man or “as a woman” – has carried out previous acts that may amount to sexual harassment, anonymisation would in any case destroy this vital safeguard. The tribunal accepted this point.
The tribunal concluded that the respondents had not satisfied the burden of showing that Upton’s Article 8 rights should take precedence over the Article 6 and 10 rights and freedoms of the claimant, the press and the public.
The question of pronouns
Naomi Cunningham, acting for the claimant, used masculine pronouns for Upton; the barrister acting for Upton used feminine pronouns. We understand that the judge announced his intention at the start of the private section of the hearing on the first day of the hearing to refer neutrally to “the second respondent” or “Dr Upton” without using pronouns on that day. On the second day, he referred to the respondent by she/her pronouns, which was queried by the claimant’s counsel. In the order issued the tribunal used she/her pronouns for Upton throughout.
Employment Judge Tinnion’s practice on the second day and in his order follows the practice recommended in the Scottish Equal Treatment Bench Book (ETBB), which says:
“As a basic principle, language used to or about LGBT people should reflect how they themselves wish to be addressed or referred to. This applies particularly to the title (e.g. Mr, Ms, etc.) and first and other names of transgender people, as well as the personal pronoun used to refer to them. In the vast majority of circumstances, there will be no need to discuss the transgender status or any former name of a transgender person. The principle of “use preferred language” also applies to the words used to describe someone’s sexual orientation, and their relationships and partners. Obviously, if the case concerns the existence of a prejudiced attitude, it will be necessary to address the terms in which this attitude was expressed. Any use of such language in anything other than this context, by anyone in court, should be restrained.”
It directs readers to further information from Equality Network, Scottish Transgender Alliance, Stonewall and LGBT Youth Scotland. The ETBB and these activist organisations are not a source of law and have no power to bind a court or tribunal. What does have legal force is Article 6 of the European Convention on Human Rights: the right to a fair hearing before an impartial tribunal.
Peggie’s solicitor has written to the tribunal to raise this issue, arguing that if in the full hearing the tribunal refers to Upton as “she” and “her” it will be communicating a preference for one side of the debate and undermining both the appearance and the reality of impartiality:
“If the tribunal uses preferred pronouns ‘as a courtesy’, the implication is that it is discourteous of the Claimant and her counsel not to do so. But the Claimant’s case is that Dr Upton should not be allowed to use the women’s changing room, because he is a man. It is impossible to put that case clearly and forcefully while referring to the man in question as ‘she’ and paying lip-service to the fiction that he is a kind of woman. The whole point is that he is a man.”
Peggie’s solicitor has requested that the tribunal that conducts the full hearing of this case adopts a policy of neutrality, avoiding personal pronouns altogether for the second respondent, while allowing the parties to take their opposing positions.
Peggie is represented by Margaret Gribbon of McGrade + Co. Employment Lawyers. The full hearing will take place at Edinburgh Employment Tribunal over ten days starting on 3rd February.
These photographs of Sandie Peggie can be downloaded:
