Trans row NHS board could face unlimited fines under enforcement action considered by equalities watchdog

The NHS board which allowed a transgender doctor to use a female hospital changing room could be taken to court and face unlimited fines.

NHS Fife is at the centre of a row over its controversial trans policies amid an ongoing landmark employment tribunal.

The board accused nurse Sandie Peggie of misconduct after she challenged Dr Beth Upton, who was born male but identifies as a woman, in female facilities at Victoria Hospital, Kirkcaldy.

Bosses at the Fife board have now told the Equality and Human Rights Commission (EHRC) they will not consider altering their trans guidelines until after the conclusion of the case.

But the EHRC – the UK’s equalities watchdog - has said it is looking at whether to take ‘enforcement action’ against the board to protect women’s safe spaces - which could lead to the watchdog directly intervening in the tribunal.

Last night there was anger that the board could be prepared to risk taxpayers’ money on legal fees, if the case came to court, while a fine would also be paid for from the public purse.

Campaign group For Women Scotland (FWS) accused the board of ‘deliberately flouting the law’.

A failure to comply with an EHRC order could lead to an unlimited fine, while the watchdog also has power to carry out investigations and apply for interdicts in the Scottish courts, if it believes organisations are not complying with the law.

Nurse Sandie Peggie was suspended after complaining about trans doctor using a female changing room

Dr Beth Upton, who was born male, leaving the employment tribunal in Dundee earlier this year

Glasgow University public law lecturer Dr Michael Foran said the EHRC could also ‘potentially apply to intervene in Peggie v NHS Fife to set out its understanding of the applicable equality and human rights law in this case’.

Carol Potter, the board’s chief executive, told the EHRC any recommendations that resulted from the case brought by Ms Peggie would be considered ‘in partnership’ with the Scottish Government and trade unions.

The EHRC had earlier sought to remind the health board of its ‘obligations’ under equalities legislation.

It said assessments of new policies and practices which affect equalities legislation must be published.

The Daily Telegraph reported an exchange of letters between the EHRC and NHS Fife.

One of these was a March 27 letter from NHS Fife chief executive Ms Potter to EHRC chief executive John Kirkpatrick.

She said: ‘We recognise the significant media attention and public discussion this issue has generated.

‘However, as with any complex legal and organisational matter, not all facts or considerations may be fully reflected in external reporting.’

She said the health board recognises its responsibilities under the Equality Act 2010, saying that the current legal process must conclude before any potential changes to practices can be considered.

NHS Fife claimed it was ‘committed to fostering a safe, inclusive, and non-discriminatory environment for all staff and patients’.

Ms Potter also said NHS Fife is awaiting the publication of a national ‘gender transitioning guide’ from NHS Scotland which will inform policy.

Last night an EHRC spokesman said: ‘The policies and practices of all Scottish health boards must comply with the Equality Act 2010, as it relates to the provision of single-sex services and spaces.

‘We wrote to NHS Fife to remind them of their obligations under the Public Sector Equality Duty, and request that they provide information relevant to the provision of changing facilities for their staff and the rights of different groups in the application of these policies.

‘We are currently reviewing the response NHS Fife provided and will be writing to them again shortly.

‘As Britain’s equality regulator, we will consider any appropriate next steps, including the use of our enforcement powers.’

NHS Fife said the board had not directly received earlier correspondence from the EHRC.

A spokesman said: ‘NHS Fife did not receive a letter from the EHRC and subsequently requested a formal copy from the Commission, following its publication on the EHRC website on February 21.

‘The EHRC announced that they had written to NHS Fife and Scottish Government regarding access to single-sex changing facilities for NHS staff; but no such letter was received directly by NHS Fife, and we had expected to see that correspondence before responding.

‘Following NHS Fife’s request, the letter from the EHRC was subsequently received on March 20 via email and the board responded directly on March 27.’

Writing on social media platform X, former civil servant Lucy Hunter Blackburn of gender-critical think-tank Murray Blackburn Mackenzie, said: ‘NHS Fife’s management don’t emerge very flatteringly from this set of exchanges.’

Last week the Mail revealed that police chiefs are asking the EHRC for advice about whether they should allow rapists to self-identify as women - and provide single-sex changing rooms for staff.