Neil Gray was warned NHS Fife 'had acted illegally' in trans doctor case

The SNP Health Secretary was warned NHS Fife may have acted illegally amid a row over a transgender doctor using a female changing room, it has been reported.

A letter to Neil Gray in June last year said the health board was failing “to comply with its legal obligations to provide suitable workplace single-sex toilets and changing facilities for its staff”.

Neil Gray | PA

It was sent by a lawyer acting for Sandie Peggie, a nurse who was suspended from her work at the Victoria Hospital in Kirkcaldy, Fife, in January 2024 after she objected to Dr Beth Upton, a transwoman, using the female changing room in the accident-and-emergency (A&E) department on Christmas Eve 2023.

Ms Peggie has now lodged a claim against the Fife health board and Dr Upton, citing the Equality Act 2010, including sexual harassment, harassment related to a protected belief, indirect discrimination and victimisation.

An employment tribunal was meant to have concluded on Friday after ten days but has been adjourned until July 16.

NHS guidance says those who are trans are allowed to use changing rooms that align with their gender identity. Ms Peggie’s line manager, Esther Davidson, previously told the tribunal she had been advised she was "not permitted to exclude transgender females from the changing rooms." This has been disputed by legal experts.

Dr Upton, who does not have a gender recognition certificate, has accused Ms Peggie of bullying. NHS Fife has described the case as unnecessary and vexatious.

The Herald on Sunday reported that Margaret Gribbon, Ms Peggie’s lawyer, wrote to Mr Gray about the case last summer.

She said NHS Fife was failing “to comply with its legal obligations under the 2010 [Equality] Act not to indirectly discriminate against female staff and to comply with its legal obligations under the Human Rights Act 1998 not to expose female staff to violations of their article 3 and 8 rights to privacy and dignity and not to be exposed to indecent exposure or voyeurism”.

Mr Gray passed the email to an official, who responded by saying “responsibility for complying with the requirements of the Equality Act rests with NHS Scotland boards as employers”.

According to The Herald, the civil servant’s letter continued: “The Scottish Government supports the appropriate use of the single-sex exemptions by employers where it is a proportionate means of achieving a legitimate aim.

“Health boards should assess each situation individually and sensitively using experience and expertise to determine the appropriate course of action, whilst fulfilling their responsibilities under the Equality Act.”

It said Ms Peggie could report her concerns to the Independent National Whistleblowing Officer.

Tory MSP Murdo Fraser said: “There are very serious questions here for NHS Fife’s board and senior management, which I know they will not want to answer until the case is resolved, but that they will not be able to hide away from.

“The revelation that Neil Gray was contacted about this last year but did nothing to intervene is deeply concerning, particularly given the funding situation at NHS Fife.”

A Scottish Government spokesperson said: “This is an ongoing employment tribunal, and it would not be appropriate to comment.”