The Sandie Peggie tribunal has ridden roughshod over the Supreme Court ruling

I always expected Sandie Peggie to win her harassment case against Fife Health Board, but equally, had my doubts that any claims against Dr Beth Upton, the trans-identifying male doctor that she had been forced to share a female changing room with, would stand because, after all, this was an employment tribunal and it was Peggie’s employer, not Peggie, that was principally in the dock (although some of the commentary and the judgment itself would have you think otherwise). 

Expectations being met are always satisfying and I applaud Sandie Peggie for her tenacity and her win, and unlike the health secretary I focus more on the landmark victory for a long-standing female public servant of the NHS against a misguided employer who harassed her than on the elements of the case that she was not successful in winning.  

But I am genuinely perplexed by some of the rationale within the judgment and the wholesale dismissal of some of the elements of the case. Most notably on whether trans-identifying males are the same risk to women as another woman might be when the evidence exists to show that unequivocally not to be the case; on whether trans women can access single-sex changing rooms based on some nebulous notion of a femininity test; or bizarrely, on whether enough women complain in numbers about their presence in a female-only space. 

What I did not expect was for the employment tribunal to add to what is already a confused and toxic environment by seemingly riding roughshod over the Supreme Court ruling from earlier this year that clarified in very simple terms that in the Equality Act, ‘sex’ refers to biological sex and ‘woman’ refers to an adult female.  

I did not expect an employment tribunal to not just misrepresent the law, but to doctor judgments from both previous seminal tribunals but also that from the highest court in the land. Presumably that will come back to haunt. 

I also did not expect to read in a consequential legal report descriptions of regressive gender stereotypes about make-up, long hair and clothes being somehow used to give value to a biological unreality that Dr Beth Upton was, as he claimed himself in the tribunal hearing, a biological female.  

I did not expect for serious legal minds to tear into a nurse of 30 years with an unblemished career by giving substance to allegations that she was a racist based on reposting social media posts and therefore also somehow a transphobe.

I did not expect a judge to indulge in the gossip of the workplace and to then pass judgement on its content when it had absolutely nothing to do with the principles in the case.

And I did not expect a cerebral opinion to be riddled with an inherent bias towards a belief in gender ideology by using terms such as ‘assigned male at birth’, avoiding any use of actual pronouns, and accusing Peggie of ‘proselytising’ in relation to biological reality while also chastising her for the way she expressed herself to Dr Upton, who she believed remained a man regardless of how he identified when confronted with him in the female changing room. 

I sadly did expect ill-informed and misinformed commentary from so-called feminists who would choose to not applaud a victory for a woman in a case of harassment by her employer in favour of scoring points for an ideological fervour around gender identity.  

And I take succour in the fact that this is an employment tribunal judgment and in terms of law and practice only applies to that case which was in front of it, so does not make case law as some would have it.

And I take comfort in the fact that a lower court can't overrule a higher court, so anyone viewing Peggie or the earlier Marie Kelly vs Leonardo UK judgments as any particular insight into what the Supreme Court ‘really meant' is talking mince.  

But nevertheless, Judge Kemp’s opinion has muddied the waters, allowed for nonsense commentary, misinformation, and muddled analysis from media and politicians alike, and will necessitate an appeal.  

And with the UK Government still to approve the updated EHRC guidance which should sit alongside the Supreme Court’s judgment as a go-to on how to operate within the law as service providers and employers, there is no doubt Sandy Kemp’s 312-page judgement has thrown a bit of a spanner in the works, raising questions about whether Bridget Phillipson, the women and equalities minister, will go ahead and publish the delayed UK’s statutory regulator’s guidance before Christmas as expected or will hold off until any appeals in the Sandie Peggie case have concluded, and so allow ongoing and unhelpful speculation about how the law should operate in practice and only add to calls from trans activists for the clock to be turned back on the rights of women and for the law itself to be changed.  

Sandie Peggie wasn’t just standing up for herself; she was standing up for any women brave enough to say ‘no’.