War over pronouns breaks out at Sandie Peggie v Dr Beth Upton trans changing room tribunal
Lawyer Naomi Cunningham was told she was being ‘offensive’ and must use ‘appropriate language’.
A war of words over pronouns broke out at the ongoing employment tribunal between nurse Sandie Peggie and trans doctor Beth Upton.
Ms Peggie’s lawyer Naomi Cunningham was accused by NHS Fife’s legal team of being “offensive” by referring to Dr Upton as a man and told she must use “appropriate language”.
Ms Cunningham was further accused of “discombobulating” the witnesses by using he/him pronouns to refer to Dr Upton.
Ms Peggie is suing Dr Upton and NHS Fife for sexual harassment over Dr Upton’s use of the female changing rooms. Ms Peggie was also suspended over allegations of bullying and harassment.
On Thursday the tribunal heard from charge nurse Angela Glancy, who was appointed as the investigating manager into the allegations against Ms Peggie, and HR official Anne Hamilton.
When Ms Glancy was giving evidence to the tribunal in Dundee, she referred to Dr Upton as “he” and then quickly corrected herself and said “sorry, she”. This was in response to a question from Ms Cunnigham where she used the pronoun “he” to refer to Dr Upton.
Throughout the tribunal Ms Cunningham has consistently referred to Dr Upton as a man and used the pronouns he/him in her questioning.
NHS Fife’s lawyer Jane Russell interjected to stop the proceedings and said: “I want to raise concerns about the consistent misgendering. I have checked the equal treatment benchmark from May 2025 which says we should use an individual’s preferred pronouns or alternatively the gender neutral ‘they’ to help minimise offence.”
She added there is an exception when discussing “a biological male attacker”, but said this does not apply to his case.
Ms Russell continued: “I am concerned about the fairness of the proceedings with Ms Cunningham’s misgendering which is creating a hostile environment for the witnesses and is confusing them.
“They are not used to hearing Dr Upton being referred to with the pronouns he/him and it is clearly discombobulating this witness and affecting her ability to give her best evidence.”
She then pleaded with Ms Cunningham to “reflect on her language and duty of civility in the court”.
Employment Judge Sandy Kemp, who is overseeing the tribunal, then asked Ms Cunningham if she had anything to say in response or wanted time to reflect - she said “no” and continued her cross-examination using the pronouns he/him for Dr Upton.
Later on in her questioning Ms Cunningham then told Ms Glancy “you’ve not been confused” by her use of he/him pronouns. Ms Glancy said she would not normally misgender Dr Upton because Dr Upton had asked her to use she/her pronouns.
Ms Cunningham then said: “I am suggesting the only reason you misgendered Dr Upton is that you have trained yourself, with considerable effort of will, to refer to someone male as she/her and I have disrupted that by using the correct sex pronouns, and you have a tendency to revert back to what is natural.”
Ms Glancy said she did not agree with this assertion.
When questioning HR assistant Ms Hamilton, Ms Cunningham said the health board’s report on Dr Upton’s evidence had been changed from using they/them to she/her by the final draft.
She said: “With the recommendation that Sandie Peggie be disciplined for misgendering, it’s easy to understand why instances of so-called misgendered are excised from the report itself.
“It would be awkward and embarrassing for the board to be disciplining Sandie Peggie for doing something it itself did in its disciplinary investigation report.”
Ms Cunningham then accused the tribunal of treating her unfairly compared to NHS Fife’s lawyer after a dispute over the use of the word “heresy”.
When referring to the internal investigation at NHS Fife, Ms Cunningham said “that is symptomatic of the determination we’ve seen to protect Dr Upton at all costs and punish Sandie Pegggie even if the price was unfair conduct”, and added “because Sandie Peggie is guilty of the same heresy that has so exercised Ms Russell that Dr Upton is a man.”
Ms Russell objected to this saying “it is not heresy” and added: “It is offensive what Ms Cunningham is doing, which is referring to Dr Upton in these terms and in particular to call Dr Upton a man - Dr Upton is not a man.
“I am very concerned about this attitude for Ms Cuningham to be so offensive in court.”
Judge Kemp agreed Ms Cunningham’s comment was unhelpful because Ms Russell was not the one giving evidence and said she should rephrase her question with "appropriate language”.
Ms Cunningham then said: “I am concerned about what we perceive as asymmetry in the tribunal’s treatment of both sides.
“It is beyond doubt Ms Russell is exercised on behalf of her client on their instruction and there is nothing pejorative about the word exercised and I did not accuse her of heresy.
“One aspect of [Ms Peggie’s] case is she has been treated as a heretic deserving of punishment - heresy here is shorthand for someone who doesn’t believe in, and won’t pay lip service to, the gender identity belief system.
“That is not a novel or fanciful idea.”
She then said the tribunal had “indulged” Ms Russell’s numerous objections to Ms Cunningham using he/him pronouns and asked the judge to “restrain” NHS Fife’s lawyer if she did it again.
In response, Ms Russell said: “It is unfortunate what I have just heard did not contain an apology.”
Ms Russell added: “When working together as a judiciary, counsel, solicitors, witnesses, it is right we treat each other in accordance with those standards, but it is also kind.”
During Thursday’s hearings the tribunal heard it was “less than ideal” that Dr Upton had asked Dr Kate Searle, her line manager and another witness in the case, to sit in on a meeting she had with the investigating manager.
Ms Hamilton also told the tribunal it was “less than ideal” that Ms Glancy and Dr Upton had met privately to amend Dr Upton’s transcript notes from that meeting.
The tribunal continues on Friday and will hear from two IT witnesses and Dr Maggie Currer.
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