Sandie Peggie: Tribunal rules that employers do not have to exclude trans people

The Sandie Peggie case is one of the first cases after the Supreme Court ruled on the meaning of sex under the Equality Act to consider the argument that employers should operate a blanket exclusion of trans people from changing rooms. The upshot of this decision is that employers should not do so. The tribunal found that the Supreme Court decision did not decide which changing room a trans person should use.

The tribunal found that it was not inherently unlawful for a trans woman to be given permission to use a female changing room at work: a number of factors needed to be weighed in the balance. The tribunal said that Ms Peggie’s trans-exclusionary argument went too far because it was incompatible with what the Supreme Court decision said about not disadvantaging trans people.

The tribunal dismissed all of Ms Peggie’s claims against Dr Upton and the vast majority of her discrimination and harassment claims against the hospital, only holding that 4 aspects of the harassment claim succeeded on narrow points. The most significant of these was the tribunal’s conclusion that, although, initially, it was lawful for permission to have been given to Dr Upton to use the female changing room, things changed once Ms Peggie complained. At that point the permission should have been temporarily revoked for a few months (although it became lawful again once alternative arrangements had been made to keep the two individuals apart).

The tribunal found that some of Ms Peggie’s remarks to Dr Upton (including telling her that she was a man, enquiring about her “chromosomes” and comparing her to a convicted rapist) were similar to the sort of hate speech considered by the ECtHR in Lilliendahl. The tribunal concluded that these comments were impermissible manifestations of Ms Peggie’s belief (and therefore not worthy of protection) and, in fact, amounted to harassment of Dr Upton by Ms Peggie both under the Equality Act and the hospital’s bullying and harassment policy.

The tribunal rejected the evidence of Maya Forstater from Sex Matters that trans women pose a greater risk to cis women than other cis women within a changing room environment.