You have explained clearly in a number of threads (and in your discussion with Naomi) that the EA must be read as being compatible with the WR1992 (which are Assimilated EU law). This means that separate changing facilities at work must be provided based on sex.
There are still those arguing against this.
Would you be able to address this again, briefly, and to refute what this "former lawyer" is claiming?
Hi Michael, is it possible/how likely is a 'mixed verdict'? For instance, could Sandie win a claim of indirect sex discrim' based on a failure to comply with Working Regulations, but lose her claim relating to her suspension (because the tribunal accepts the respondents' claim of patient risk).
I'm interested in this too. Relatedly, how likely it is that SP wins on the more 'institutional' elements of the claim (procedural unfairness and the like) while Upton gets off the hook for his behaviour (this was the way it seemed to be going to me but it's so hard to tell just from reading the tweets)
There was quite a lot of talk about how the respondents had failed to disclose documents that were relevant to the case. This seems quite shocking. Even if poor practice, is it not uncommon for this to happen? Are there other issues that might appear shocking but are not uncommon in reality at ETs?
On the harassment claim against Dr Upton – Can you clarify what Peggie is relying on here - is it his presence in the women's changing rooms or his subsequent conduct in how he went about complaining or both? If the tribunal is satisfied that he genuinely believes himself to be female, can’t understand why women might find his presence/conduct distressing, and genuinely sees himself as the victim of transphobic hate would this be a defence or does he also need to establish that these beliefs are reasonable?
Relatedly – how do you think Naomi’s questioning on the more theoretical details of gender ideology landed with the tribunal? Did you get the impression that they understand how mental this is or has DU’s ‘sex is a complex mystery’ obfuscation been successful?
There’s been some talk of NHS Fife settling the case – how likely do you think this is? If they did want to settle where would this leave Dr Upton in terms of legal representation? Could NHS Fife make any settlement conditional on dropping the personal claim against DU? Would refusing to agree to any such settlement be interpreted by the tribunal as unreasonable/vexatious on Peggie’s part?
Could NHS Fife have avoided the issue and kept within the 1992 Regulations by supply changing cubicles within a mixed sex locker room? Many public sector workplaces are old and space is at a premium, so this is often the solution used...but is it legal?
Hi Michael. I’m not very ‘techy’ so not sure how to/if I can share this on your Substack as a question for your upcoming live chat.
This clip articulates everything I have been trying to say.
I have two questions:
How can we get these behaviours which are apparently covered under the guise of EDI, recognised by courts as harassment/sexual violence in cases like Sandie Peggie’s?
GRA without certification allows conflation of men with paraphilias/fetishes and men with the medical diagnosis of gender dysphoria without a paraphilia.
These two things can obviously overlap.
Could reform of GRA ‘fix’ this failure to protect women and children from this type of sexual harassment/violence?
I had always believed, possibly wrongly as I’m not a lawyer, that for a legal offence to have occurred there either had to be intent or egregious recklessness.
However, in the current climate around identity politics and especially around trans issues that seems to have been discarded and it is the perception (or claimed perception) of offence by someone else is a key determinant of bad possibly illegal behaviour that is built into organisational policies.
According to the Sex Matters website, in Croft v RM, "the Court of Appeal said that at some point a male person should be considered transitioned enough to gain access to women’s facilities, even if they had not ‘changed sex’, but it would not say what that point was."
Does the Croft judgment mean that it's impossible for an employer to provide single sex facilities as inevitably at some point the employer would have to allow the trans employee to use those facilities?
Also at some points in Sandie Peggie's tribunal, the judge remarked on the level of expertise of witnesses. Would the judge accord more 'expertise' to Upton's definition of sex as compared to testimony of non-experts? Would it have helped Peggie's case if an expert witness like Professor Winston had explained the definition of sex to the judge?
I’m interested in how employers can be brought to account under the 1992 Regs if they don’t offer sss. In tribunal they said it was outwith its jurisdiction, so how would someone go about challenging under those? What are the benefits/otherwise of taking a case under that, as opposed to the equality Act?
Hi Michael, I’m interested in the breakdown of financial compensation that may be payable in the event Sandie wins her case. There will be a number of different elements I know, but I’d like to explore more about how it would be broken down
Hi Michael
You have explained clearly in a number of threads (and in your discussion with Naomi) that the EA must be read as being compatible with the WR1992 (which are Assimilated EU law). This means that separate changing facilities at work must be provided based on sex.
There are still those arguing against this.
Would you be able to address this again, briefly, and to refute what this "former lawyer" is claiming?
https://x.com/ReactiveAshley/status/1893051962813235517
https://medium.com/@notashley/nhs-fife-v-bigots-what-the-law-says-about-trans-inclusive-policies-de613665cf74
Thank you!
Interested to get your thoughts on this: https://translucent.org.uk/transgender-employees-toilets-changing-rooms-and-the-workplace-health-safety-and-welfare-regulations-1992/
Hi Michael, is it possible/how likely is a 'mixed verdict'? For instance, could Sandie win a claim of indirect sex discrim' based on a failure to comply with Working Regulations, but lose her claim relating to her suspension (because the tribunal accepts the respondents' claim of patient risk).
I'm interested in this too. Relatedly, how likely it is that SP wins on the more 'institutional' elements of the claim (procedural unfairness and the like) while Upton gets off the hook for his behaviour (this was the way it seemed to be going to me but it's so hard to tell just from reading the tweets)
Hi Michael
A two parter from me:
(1) Why hasn't a direct sex discrimination claim in this context been taken before?
(2) If the direct sex discrimination claim wins presumably it will have wider effect than just women's changing rooms? How much wider?
Look forward to the Q & A
Dusty
Hi Michael,
If NHS Fife lose because they have no policy and no risk assessment, and not following workplace regs 1992 etc . What would Upton’s position be then?
Also isn’t it difficult as both respondents have the same barrister?
There was quite a lot of talk about how the respondents had failed to disclose documents that were relevant to the case. This seems quite shocking. Even if poor practice, is it not uncommon for this to happen? Are there other issues that might appear shocking but are not uncommon in reality at ETs?
Thank you for doing this!
On the harassment claim against Dr Upton – Can you clarify what Peggie is relying on here - is it his presence in the women's changing rooms or his subsequent conduct in how he went about complaining or both? If the tribunal is satisfied that he genuinely believes himself to be female, can’t understand why women might find his presence/conduct distressing, and genuinely sees himself as the victim of transphobic hate would this be a defence or does he also need to establish that these beliefs are reasonable?
Relatedly – how do you think Naomi’s questioning on the more theoretical details of gender ideology landed with the tribunal? Did you get the impression that they understand how mental this is or has DU’s ‘sex is a complex mystery’ obfuscation been successful?
There’s been some talk of NHS Fife settling the case – how likely do you think this is? If they did want to settle where would this leave Dr Upton in terms of legal representation? Could NHS Fife make any settlement conditional on dropping the personal claim against DU? Would refusing to agree to any such settlement be interpreted by the tribunal as unreasonable/vexatious on Peggie’s part?
Good questions!
Could NHS Fife have avoided the issue and kept within the 1992 Regulations by supply changing cubicles within a mixed sex locker room? Many public sector workplaces are old and space is at a premium, so this is often the solution used...but is it legal?
Hi Michael. I’m not very ‘techy’ so not sure how to/if I can share this on your Substack as a question for your upcoming live chat.
This clip articulates everything I have been trying to say.
I have two questions:
How can we get these behaviours which are apparently covered under the guise of EDI, recognised by courts as harassment/sexual violence in cases like Sandie Peggie’s?
GRA without certification allows conflation of men with paraphilias/fetishes and men with the medical diagnosis of gender dysphoria without a paraphilia.
These two things can obviously overlap.
Could reform of GRA ‘fix’ this failure to protect women and children from this type of sexual harassment/violence?
https://youtu.be/3MGt1UGsx9o?si=u9Z6TnR_IVsiOSCs
I had always believed, possibly wrongly as I’m not a lawyer, that for a legal offence to have occurred there either had to be intent or egregious recklessness.
However, in the current climate around identity politics and especially around trans issues that seems to have been discarded and it is the perception (or claimed perception) of offence by someone else is a key determinant of bad possibly illegal behaviour that is built into organisational policies.
Does that have any legal standing ?
Hi Michael, thanks for doing the Q&A
According to the Sex Matters website, in Croft v RM, "the Court of Appeal said that at some point a male person should be considered transitioned enough to gain access to women’s facilities, even if they had not ‘changed sex’, but it would not say what that point was."
Does the Croft judgment mean that it's impossible for an employer to provide single sex facilities as inevitably at some point the employer would have to allow the trans employee to use those facilities?
Also at some points in Sandie Peggie's tribunal, the judge remarked on the level of expertise of witnesses. Would the judge accord more 'expertise' to Upton's definition of sex as compared to testimony of non-experts? Would it have helped Peggie's case if an expert witness like Professor Winston had explained the definition of sex to the judge?
I’m interested in how employers can be brought to account under the 1992 Regs if they don’t offer sss. In tribunal they said it was outwith its jurisdiction, so how would someone go about challenging under those? What are the benefits/otherwise of taking a case under that, as opposed to the equality Act?
Hi Michael, I’m interested in the breakdown of financial compensation that may be payable in the event Sandie wins her case. There will be a number of different elements I know, but I’d like to explore more about how it would be broken down