Mixed-sex changing rooms as direct sex discrimination

Earlier this week I attended a public preliminary hearing in Peggie v NHS Fife. This case concerns a claim by Sandie Peggie, a nurse working at NHS Fife, against her employer and a colleague Dr Beth Upton, a natal male who identifies as a woman. Dr Upton has been using the female-only changing rooms for some time now and Sandie Peggie is bringing a claim that this has resulted in unlawful harassment and discrimination in breach of the Workplace (Health, Safety, and Welfare) Regulation 1992 which state that changing facilities will not be suitable “unless they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety”.

At the hearing this week, Naomi Cunningham, counsel for the Claimant sought to amend the initial claim to include a claim of direct sex discrimination. Given the importance of this case and the publicity that it is likely to attract, I have decided to make the post that I wrote on this question available to the public.

Running a blog site such as this can be a delicate balancing act. I wouldn’t be able to devote as much time to it if I didn’t put some posts behind a paywall. The income from this cite, modest though it is, has allowed me to continue to write regularly about this topic in addition to my ordinary academic publications, which typically require much more detailed research and consideration. The virtue of a blog is the ability to publish contemporaneous to events and to get ideas out that can then be refined as time goes on.

I tend to put things that are on the more doctrinal side of things behind a paywall to reflect the increased work that such posts usually entail. But when these arguments become relevant for ongoing cases or where there is a chance that what I write could influence policy formation in key areas, I feel an obligation to make this public, even if just on the small chance that it could make a difference in furthering understanding of the law.

That can be frustrating for those who have chosen to support me by becoming a paid subscriber. It doesn’t seem fair that someone would pay to access content only for that content to be made available anyway. For that, I apologise. My attempt at rectifying that is to propose a webinar with subscribers in the next week or two. Naomi Cunningham has very kindly agreed to join me for a discussion prompted by your questions. If you are a subscriber and have questions that you’d like us to discuss, keep an eye on your notifications as I will send out a message in the next few days to arrange something.

Thank you to everyone who reads this blog and especially to everyone who supports it financially. It means the world to me and I hope this webinar is a good way to show my thanks.