A transgender doctor has been accused at an employment tribunal of “role playing” as a woman by using a female changing room.
Dr Beth Upton and NHS Fife health board have been taken to the tribunal by Sandie Peggie, who has worked as a nurse at the Victoria Hospital in Kirkcaldy for 30 years and was suspended following an incident in the women’s changing rooms at the hospital on Christmas Eve 2023.
Peggie lodged a complaint of sexual harassment or harassment related to a protected belief under Section 26 of the Equality Act 2010 regarding three incidents that occurred when she shared a changing room with Upton.
Her complaint was made after she was suspended in January last year over an allegation of bullying and harassment lodged by Upton.
Naomi Cunningham, representing Peggie at the tribunal in Dundee, accused Upton during Tuesday’s hearing of “immersive role play”.
Peggie left the changing room when Upton was present on two other occasions prior to Christmas Eve 2023, which are the other instances cited as harassment.
Discussing one incident, Cunningham said: “What Sandie Peggie has done by withdrawing from [the] changing room when you were there is opted out of immersive role play. That’s why you [Upton] were angry with her.”
She added: “I want to suggest that the reason it’s not acceptable to you for one colleague to opt out, is the danger that one voice telling the truth will break its spell. It’s like the child in the emperor’s new clothes. That one voice saying you’re a man will break the spell.”
Upton replied: “There is no immersive role play. I’m not concerned about an emperor’s new clothes moment. I’m asking all colleagues to treat me with respect as I treat them. I’m not a man.
“Either way, I don’t need the external validation to know who I am.”
Upton repeatedly told the tribunal on Monday “I’m not male”, and insisted that a gender recognition certificate should not be “required for a trans person’s gender identity to be validated or respected”.
She gave evidence on Tuesday about concerns regarding a shift on December 28 where Peggie was scheduled to be working and about an allegation regarding patient safety on December 18.
The tribunal was told that Upton sent a message to her line manager, Dr Kate Searle, in the early hours of Christmas Day saying, “I don’t feel safe using the changing rooms when she’s there”, but used the female changing rooms on December 28, when Peggie was present.
An email sent by Upton to the British Medical Association on Boxing Day read: “I feel utterly alone in this situation as my superiors have yet to respond.”
Cunningham said: “On Christmas Eve you stood your ground and said you were entitled to be in the changing rooms, a few hours later you feel certain you don’t feel safe when she’s there but on December 28, decide to use changing room anyway.”
Upton reponded: “In the early hours of Christmas morning I was freaking out and trying to think of ways I could keep myself safe from further hostility … I thought I would put my big girl pants on and be brave.
“Unfortunately I wasn’t as brave as I thought.”
A contemporaneous note-to-self from Upton recorded concerns that Peggie had “noticed” her. However, the nurse’s legal team said Peggie reported being “quite sure she didn’t see you that day,” in her evidence.
Upton said: “I reflected, and determined that I wasn’t willing to let someone’s bigoted outburst and unpleasantness stop me being who I was. I decided I would face this hostility head on.”
Regarding the incident on December 28, Cunningham said: “I suggest the reason you made this incident up was nothing had been done. This was an extraordinarily serious complaint against a colleague.”
Upton replied: “Your question is did I fabricate this? No, I didn’t fabricate it. I didn’t allege she had done anything apart from notice me.”
The tribunal was told that Upton’s allegations about being “ignored” by Peggie on December 18 when a patient left A&E without being seen, differed from the recollection of another worker present who said that Peggie and Upton had a conversation.
Upton’s note said “on a night shift with SP as usual not acknowledging my presence”, but Cunningham said the other medic “recalled a conversation between you and Sandie”, the tribunal heard.
Cunningham asked if the incident on December 18 was “more extreme” than others logged by Upton since August 26, 2023.
Upton said: “Yes because it involved a patient I had responsibility for.”
Upton added: “I’m not hostile towards the claimant at all. I’m upset at the way I’ve been treated as a result of her actions. So no, I haven’t been making things up.”
The tribunal continues.
