Day 7 of Sandie Peggie’s Employment Tribunal claim against the Royal College of Nursing. Final submissions from both parties.
219 tweets
Good morning and welcome to the final day of Peggie v RCN. No witnesses today, just closing submissions from David Hay KC for the RCN and Naomi Cunningham for Sandie Peggie. Snappers are on standby for the protagonists. Proceedings and live tweeting starts at 10am.
If you would like to read my report of yesterday's proceedings – and indeed all the previous six days, please take a look here:
genderblog.net/peggie-v-rcn-day-6-patricia-marquis/
If you would like to tell a friend who is not on X where to follow the day's live tweets, you can find them here:
genderblog.net/live-tweets/
Please note my tweets are summaries and characterisations of what is being said and what is happening in court. NOTHING is a direct quote unless it is in "direct quotes".
Abbreviations:
J – employment judge Mel Sangster
NC – Naomi Cunningham – Sandie Peggie's barrister
SP – Sandie Peggie
DH – David Hay KC – RCN's barrister
RCN – Royal College of Nursing
(more to follow as we go along)
[NC is going first]
NC before I start on my written doc there are two things I want to say is about the aftermath of the Supreme Court (SC) judgment. In my submission the likelihood is that legal historians of this period will look back at the months following the judgment on a
matter which broad to a head one of the most pressing and bitterly fought controversies of our time. The reaction to that judgment has been quite extraordinary. It's a relatively short j from our apex court and it's a model of clarity – it answers the q as to whether
the words man and woman refer to their bodies or their birth certificate which may be modified by a Gender Recognition Certificate (GRC). Did it mean bio sex or bio sex and certificated sex. The SC said sex in the Equality Act means sex – not what's written in a GRC.
The conseq of that are very straightforward and spelled out in the SC judgment. Can you call up a copy of FWS?
J if you'd like me to I can do that
NC I'd be grateful
[NC tells J remote viewers are not getting any audio]
J just emailing the clerk…
[J is phoning the clerk – something I've not seen in a court before.]
J no issues raised with the clerk and she can hear – she is listening obvs – I've asked her to take steps to double check – I have a copy of the SC judgment in front of me
NC I'm not going to take you to v many of these egs, as the j from the SC is shot through with recognition that bio sex has imp prac conseq – and it has consqs for people who hve to provide single sex spaces so for eg at p55 of the j under the heading "sep and sss"
there are carve outs which permit sex discrim where permitted [reads out j]
[Found it!]
"These provisions are directed at maintaining the availability of separate or single spaces
or services for women (or men) as a group – for example changing rooms, homeless
hostels, segregated swimming areas (that might be essential for religious reasons or
desirable for the protection of a woman’s safety, or the autonomy or privacy and dignity
of the two sexes) or medical or counselling services provided only to women (or men) –
for example cervical cancer screening for women or prostate cancer screening for men,
or counselling for women only as victims of rape or domestic violence."
NC and it goes on at par 213:
"213. If sex has its biological meaning in this paragraph, then a service-provider can
separate male and female users as obvious and distinct groups. For example, a homeless
shelter could have separate hostels for men and women provided this pursued a legitimate
aim, which might be the safety and security of women users or their privacy and dignity
(and the same for male users). By contrast, if sex means certificated sex, the service-
provider would have to allow access to trans women with a GRC (in other words,
biological males who are female according to section 9(1)) to the women’s hostel. The
following practical difficulties would arise. First, it would be difficult or impossible for the service-provider to distinguish between trans women with and without a GRC
because, as we have explained, the two groups are often visually or outwardly
indistinguishable. Secondly and more fundamentally, it is likely to be difficult (if not
impossible) to establish the conditions necessary for separate services for each sex when
each group includes persons of both biological sexes. For example, it is difficult to
envisage how the condition in paragraph 26(2)(a) (a joint service for persons of both sexes
would be less effective) could ever be fulfilled when each sex includes members of the
opposite biological sex in possession of a GRC and excludes members of the same
biological sex with a GRC."
NC another eg is at par 231 now under the heading "Single characteristic associations and charities"
"A certificated sex meaning applied to these exceptions would make it impossible for any
women’s association or charity – including, for example, a mutual support association for
women who are victims of male sexual violence, a lesbian social association, a breast-
feeding support charity – to be set up or to pursue a dedicated purpose which is directed
at the needs of biological females. To require such associations or charities to reconceive
of their objects as targeting a group that does not correspond with their original aims, and
to allow trans people with a GRC (of the opposite biological sex) to join would
significantly undermine the right to associate on the basis of biological sex (or sexual
orientation based on biological sex as we have discussed above)."
NC egs or obvs of that general nature outlining the catastrophic consequenes for the pract operation of sss (single sex services) is shot through the j (judgment)
[NC takes J to par 217]
"Likewise, a certificated sex interpretation of the conditions in paragraph 27(6) and
(7) (that a person of one sex might reasonably object to the presence of a person of the
opposite sex, and the physical contact provision) will not be capable of being fulfilled in
practice. Again, it is difficult to imagine how or in what circumstances it might be
considered reasonable for a woman to object to members of the opposite sex (in condition
(6)) where “the opposite sex” would include trans women without a GRC (who remain
legally male) but not to “members of her own sex”. This would arise if by operation of
section 9(1) of the GRA 2004 the group of “members of her own sex” were to include
biological men with a GRC, and so legally female who may be physically and outwardly
indistinguishable from the former group of trans women without a GRC. While many
women in a female-only changing room or on a women-only hospital ward or in a rape counselling group might reasonably object to the presence of biological males, it is
difficult to see how the reasonableness of such an objection could be founded on
possession or lack of a certificate. This is so especially when the distinction does not track
physical appearance or presentation, and the woman is unlikely to have any information
about the GRC at the point at which her objection might be raised."
NC so underlying reasoning of SC that sss and so on the exceptions are there for a reasons women (W) are entitled to their benefit. The inevitable logical corollary of that is that if the EA notions of sex must be read on a bio basis – in any sit they are entitled to sss that MUST be on the basis of bio sex. If not conditions for them will not be able to met. So an attempt to operate purportedly but to permit a sub-cat of inds – those who ID as oppo sex. If that happens it will not meet the conds which make the operation of those services lawful. That in a nutshell was the import of the EHRC interim guidance which came out shortly after the SCj and was accurately summarised by the RCN's legal person Jo Galbraith-Marten (JGB)
NC despite that you see in microcosm what followed which was a "tsunami of obfuscation and denial" and on occasion "outright defiance". Lawyers activists, HR depts started a proces of insisting the situation was terribly confusing – got to wait for guidance, got to wait for
more guidance we have to wait for code of practice an OFS policy and consult etc etc. This was stated law – a clarification, but even if it was a change in the law… i Accept it was a surprise to people who thought they knew what the law was. Even if it was a change in the law
there was no excuse for the "obfuscation, denial and defiance" which followed the j.
If the EA was amended to change say social class to a protected char – you would not expect lawyer etc to kick up a cloud of confusion and denial – you'd not expect them not to understand what it
meant. If sex orientation was new and was added in you wouldn't expect people to say we need to consult, we don't understand, we need to wait for guidance and that is a fair parallel of what happened with the SCj – it is a model of clarity. But because it was an unwelcome
surprise for the public sector, lawyers, managers, HR people – it was not met with the proper response which was simply to comply with the law as swiftly as can be properly managed. Every employer in the country should have within a week or two of the SCj they should have
announced that W toilets, charities and CRs should be for W only and men must not use facilities for W. It's often said it will be hard to police in the workplace – but if it's the rules, employees are expected to comply if it is not complied with it can be enforced by
discip procedures. Legal historians will look back on this period as extraordinary in its attitude to the rule of law. That links what I want to say by way of intro and that was the single most telling piece of evidence we have heard in this tribunal. Patricia Hodge in xe where
I was asking her about the Fair Care for Trans Patients and PM said it was about following the accepted way of dealing with T patients at the time. She accepted the position the RCN was taking at the time was to put men who ID as W into W wards.
She accepted this was "bitterly contested" for years and culminated in the SC ruling in 2025 and she said the SC has clarified the position – but before it was the practice across healthcare that's what we advised our members to follow.
So the effect of her evidence is that the 2017 doc did take the ideological position, taken across healthcare and it was followed by RCN because it was the universally accepted view apart from the dissenting voices from the GC view
She called it the "normal and expected" practice across healthcare – so that the n and e practices for years was self-ID and that is in a nutshell the Gender Ideology (GI) position. The Responded (R – RCN) has tried to say it hasn't adopted GI by saying everyone had adopted it
YOu will have your own view and knowledge of just how widely GI had been adopted at this time but as the SC said "it was wrong all along". You might want to pause and marvel a little at how GI was so widely accepted. It should be astonishing at how it was established without
any discussion. SSS are for a reason – largely the privacy safety and dignity of W. Yet without a law being passed it was now said that it was legally required for men to access female spaces. YOu may have heard the recent horrifying case of the TiF who was admitted to a male
psychiatric ward and within minutes or hours was gang-raped. That was a direct conseq of people failing to apply their minds to the conseq of GI policies.
No one could explain how Dr Upton a TiM was allowed to use the F CR at the hospital where he worked without consultation
risk assessment, impact assessment or thought. It's astonishing.
So – the fact that GI had been almost universally accepted and adopted by those who held power in institutions doesn't mean it doesn't count. Just because everybody was acting "irrationally" you don't get a pass. It's poss to have some sympathy
it would take bravery to stand up and not go along with it. Which is why Sandie Peggie SP was so brave to stand up – perhaps not realising it at the time – she said no at a time when doing so would have you marked as a bigot.
So many people who have signed up to GI cannot see they have done so because it's happening all around them they just see it as how things naturally are. You don't need to conclude any R witnesses are lying because they just couldn't see it – it was in the water
they swam in and their they breathed – the counter-factual and legally erroneous position was everywhere. The SC has made the j – the GC view of the EA is right and the GI view of it is wrong and beyond that you don't need to go.
And that takes me on to what I have put in writing – there is not much dispute between the parties on facts. Stuart Fraser (SF) did not advise SP she might have a claim not did she refer for legal advice (LA). Norman Provan (NP) decided not to provide legal advice.
It is why the R acted as it did. In each case Claimant (C -SP) says it was because of her protected belief. R denies this. C says R conduct was informed by its adherence to GI. R denies it has adopted GI as institutional belief. in this case motive doesn't matter
They didn't desire or want to punish her. It was because of the GI in which the union was steeped made it impossible to help her. So has R adopted GI belief?
As to the rel of the R's institutional belief. As R has accepted GI and GC are in exact oppo to each other TWAW vs TWAM. GC is active dissent from or oppo to GI. It's not a matter of not signing up to it – it's a matter of opposing it and saying it's wrong.
GC or sex realism (SR) – no one had ever heard of GC belif before a few years ago. Not because it's only a recent notion that mammals come in two sexes,, can't change and have sig conseqs. Only F mammals can bear young and only M mammals can beget young
Until a few years ago knowing that and that it has prac consequences had to be described as a belief system – in the same way you didn't believe you were a round earther or believe in the nitrogent cycle or be aDarwinist. GC has only come into existence by being forged in the heat and pressure of the new ideology which has come into force in our institutions. It has taken hold with extraordinary speed partly because its not by argument or evidence, but by bullying, threats to livelihood and threats of violence
WE are hear in Dundee because SP's first tribunal was meant to be in Edin but there was a threat against me for misgending DU and the judge for allowing me to. That new ideology promoted with bullying threats of violence cancelling smearing no-platforming – that's what gave rise to GC
Bound up in GI is the idea that belief in imp of bio sex is bigoted and counter-factual. It is profoundly hostile to GC – you've seen exhortations to "kick the ever living fuck" out of people who disagree with EM and his "TERF stomping boots"
C says the R's GI belief is of powerful rel to this case and her claim she suffered discrim – sim if you imagine an employer with a conservative relig ethic institutionally opposed to female leadership…
The Rs inability to help C sprang from its own commitment to GI in oppo to C's SR. Takes me on to evidence of R's institutional belief (IB).
The R's accepted GI is inner sense of sex and that the progress pride (PP) flag was also associated with GI. On p598 the R's announcements about the SCj and slides during the engagement sessions unambiguously frame the SCj as a bad thing and give no sense any Ms might be celebrating. On p780 of the bundle – JGM's reading of Taylor v JLR as imp in providing protections for NB people
JGM's reading of the SC as confusing and somehow incomprehensible. It would only be incomprehensible to someone innocent of the impacts of GI. It's not remotely mystifying when you understand JGM was employed by an org in the grip of a GI which said TWAW and any
one who said otherwise was bigoted and hateful. It had not and has not shaken free of that ideology. That's why they saw the SC ruling as extremely unwelcome – it would be to people who had adopted GI wholesale.
The RCN advice that it was the nurses job to affirm someone's declared ID with no indication it could be dangerous for clinicians not to know someone's sex or be told it. Assumption of affirmation all the way and making the contested assumption that the 'true gender ID' of
someone was a thing, that it existed. (This is all from the Fair Care for Trans patients – which you can find on my website genderblog.net underneath the last three reports)
[NC mentioning the eunuch thing again]
You may feel that anyone who's moral compass hasn't been distorted beyond recog by GI may be able to see that if a little boy says he IDs as a eunuch the first thing to do is raise the most urgent safeguarding concerns
and find out where he got that idea from. The idea the RCN says it should affirm the eunuch ID of a child is one of the most telling illustrations of just how damaging this GI can be and just how it can distort clinicians and others sound instincts about safeguarding and their moral compas
I put the eunuch point to two witnesses. Neither felt able to say even with hindsight it was shocking. PM [yesterday's witness] said she wasn't sufficiently expert to say she had a view
I tried three times. Eventually she said "I don't know. I can't answer". Now that paralysis – that moral paralysis from PM is an indication of the vigour and violence of GI that it should be capable of causing sufficient fear in someone as senior as PM that affirming a child as a eunuch is clearly wrong. Anothing thing you don't have to decide in this tribunal is whether GI is WORIADS.
The doc on p1025 was accepted as a GI promoting event and the web piece on p1033 was accepted by NP as promoting GI. The blog post on the RCN website which promoted gender surgery and said young people should have easier access to puberty blockers…
and the whole q of treatment of gender distress is a flashpoint between GI and SRs, but this was an uncritically positive piece about the benefits of so-called gender affirming surgeries.
Then we have the search of the RCN's website which has 2 mentions of GC, 170 of TG and 60 of LGBTQ – using that expression declares a position on GI – because GC people don't believe that T or the other letters have anything to do with sex orientation – rather than essence
The R's liberal use of LGBTQIA is proof of its adherence to GI and it probably doesn't even know it – like many other orgs. it's simply part of the water they swim in. The failure to frame Forstater as an important tool for its officers to defend its members, in contrast to
JGM's post about Taylor v JLR – a first instance ruling which she pointed as been of specific use to officers. Nothng has been shown to you about training for RCN members on Forstater. Nothing about Higgs and nothing that encourages officers and activists to understand that
Forstater provides powerful protections for a lot of its members. PM accepted that 60% of general public in 2024 didn't think that TiMs should be allowed access to F changing rooms and she accepted too
… Gillian Tait didn't feel able to accept that at least a substantial minority of nurses would believe sex was real and matters. She was able to make those assumptions in case of obvious common sense propositions which didn't contradict GI, but couldn't when it did.
Finally the 57 pages from the R's online shop showing merch of sorts – mostly generic – some pay campaigning some historic – and the only items on that online shop which promotes a specific belief system was that festooned with the PP flag promoting GI. On that subject
there is not merely merch in the shop – it's notable its the only belief system it promotes – one belief system out of all the world's belief systems – no xtian merch no evidence based medicine merch no muslim merch no atheist merch – there's not even disability awareness merch
complete evidence of anything remotely comparable to GI and that shows the profound grip GI has on the RCN. Although the R says it doesn't take a position on GI – if that were true you would expect merch promoting GC merch to be as welcome on the RCN shop as GI merch and when i
put it to PM the shop might like to sell or like the PP badges give away some green white and purple enamel badge with the RCN logo – PM looked at me in complete bafflement and was wholly unable to agree that was possible and said she didn't have the expertise to agree to that
It's not diff, but for whatever reason it was impossible for her to say yes it would be fine to sell GC badges – it shows the depth of the grip GI has on the RCN. PM was also apparently baffled by the SR response to pronouns in email sigs they should write "pronouns biological"
or "pronouns sex-based" that was something which seemed to horrify her and she could not approve of in a public hearing. There is a striking absence across the RCN of anything promoting the GC view. No celebration of SCj even tho we can reasonably infer a majority of
RCNs members were pleased to see that result. There is nothing comparable to the Vital Voices event on p1025. If they had been celebrating the GC position in the way they've been promoting and celebrating GI you'd expect them to put that in the bundle. There isa
"resounding silence" there is RCN delegation to northern Pride, but no similar delegation to a women's place event or anything of that kind. There are no warning notes of over-enthusiastic affirmation of fixing a child in a cross sex ID the well recognised dangers of
puberty blockers – they stop puberty – they stop children growing up naturally. There is nothing warning of the harms of gender-affirming surgery. The RCN would put it forward if it existed. But it can't exist – it would never publish a blog post about the harms of gender
surgery because it had adopted GI. That's of course not all the evidence there is that R has adopted GI there are all the documentary points I'd urge you to recall LM's story of effectively being hounded out of the RCN in response to writing a sober respected article about GI's
issues – all of which were vindicated. She was told to reflect on her values – the last straw – a clear suggestion hers did not align with the RCNs along with the clear failure to tell her how she had transgressed.
This was happening at the same time RCN council member Dave Dawes disgusting misogynistic social media footprint. Also JW and PF's experience of being smeared as bigots and compared to racists in the SC discussion session.
Note PM's admission the manner in which those events had been handled was unacceptable and the further evidence accepted by PM relates to the secret engagement session – R's decision that having held the mournful SC sessions where they sought to comfort those distressed by
j they decided they ought to listen to their GC members, but they didn't publicise the session – they didn't email their members saying we got the first sessions wrong why don't our GC members come to a session – instead they held it in secret and only two members turned up
it's an extraordinary way to behave to sympathise with one group of members (Ms) very publcly and then to hide i a corner and talk to the others even tho they rep the majority thinking. They did the very least they could do. It's wholly comprehensible when you see they are in the grip of GI
The RCN simply cannot do ANYTHING publicly to act or say anything in support of the GI positions.
[NC suggest a break. J agrees]
[10 minute break]
[we're back]
NC got to par 12 of my subs – in light of wealth of doc evidence drawn attn to an open letter on 13 Sep this year – it is surprising R sees fit to deny it has adopted GI belief. Only surprising in a wholly sane world in which GI has taken hold so deeply in our
institutions precisely because it's so pervasive – they may not see it in the same way as PM said it held sway so pervasively in the healthcare sector.
Three more things re R's adoption of GI belief. Shocking conduct of whoever advised Jennifer Melle to write a reflective note
Second is Bethany Hutchison's compelling account of Rs failure to support nurses looking for sss – in the same a way another darlington nurse was failed by her union. And finally PM's surprising stance in relation to Freda Wallace – that he could seemingly behave as badly
as he liked on soc med without being expelled from the RCN. The unwillingness to hold TiMs to account or to say no to them – which has parallels with NHS Fife and GU is symptmatic of GI. No need to say R has lied – key evidence is Fair Care for Trans Patients
that FCfTP was practice across healthcare which is why R advised nurses that's what should be done. The true effect of that was not that R had not adopted GI it was that the whole healthcare sector had adopted GI and R was not a brave outlier and went along with it.
[Moves on]
Stuart Fraser's (SF) failure to advise SP she potentially had a case. He records SP's reax to DU in the F CR could be discrim – he saw SP as an employee in trouble for an alleged wrongdoing. It's telling SF's belief or lipservice to that belief that he rewrote
SP's complaint – he is re-written to say "she" – that little substituion by an officer of a union that had not take the position that TWAW – you only use F pronouns for TW or TiMs that they are W. If your member is complaining he shouldn't be there because he's a man
and your union officer rewrites that complaint using F pronouns if he weren't in thrall to GI. SF agreed that he should have been likely to spot victimisation or harassment claims if someone thinks they have been suspended maliciously for whistleblowing or rejecting sex advances
it wasn't up to SP to diagnise a claim – it's for the officer to do so and if it raises issues about discrim – esp if there is a clock ticking against a limited period it was incumbent on him to get legal advice as he accepted if there was any potential claim against DU
which anyone not blinded by GI would see there might be a potential claim. There were fairly apparent claims re sex harassment claim to be present whilst women undress and suspending C for objecting to that treatment. Those issues were there and the obv explanation to not act and advise as he should have – he had not been equipped to spot those issues – it was not SF's fault he did not give SP the right info. The R had been framing the F in the most minimising and grudging terms. Neither SF nor GT could say with any confidence what Forstater meant. GT had barely heard of it. SF got it with a. little prompting but didn't know what it meant for his members. He was let down by the RCN who failed to train him possible. And there was a deeper sense in which GI made it impossible to deal with. GI told him TWAW therefore there was nothing for SP object to with the presence of a kind of woman in her CR. SF agreed the kind of discrim he was thinking of was GR discrim. Objecting to the presence of a man in a sss would only be GR discrim would be on the basis of GI. The law is now clear – if you object to a TW in a femal space it is lawful discrim it's because he's a man. SF could not analyse that in those terms because the R took the Gi analysis of the law – like most orgs took the GI version of the law not the correct interp of the law.
But just because everyone is doing it, doesn't make it right.
[moves to the allegation of misgendering added to SP's disciplinary (D) which gave rise to the debate over a secondary ET against NHS Fife]
NC the On the Case RCN doc about legal representation which "may" be given, "may" be given for both workplace rep and legal rep – no distinction – the point is significant because it's clear from On The Case makes no distinction of taking legal advice from others – and the R was repping SP in the workplace whilst she was receiving LA from Margaret Gribbon and at times working with her. The R cannot say it could not give her access to LA because it was. It makes a nonsense of NP saying his hands were tied or that he'd never done it and wasn't going to start.
There wer two explanations neither of which could be true. He had discretion, he'd exercised it before as he had in SP's case.
It emerged for the first time in xe that SF had disagreed with NP's decision and sought to have SP repped. Shame NP did not give this evidence in chief. SF inferred it was morally the right and stated it was reputationally it was the right thing to do. Which is right because it
would have helped its 86% membership. A powerful explanation is needed as to why a union with a large F membership presented with a really imp strat case in which it could take an important public stand in defence of the rights of its F membership. The explanation for that is GI – it could act in the interests of its female majority membership because it was in thrall to a v small proportion but vociferous proportion of its male membership
I invite you to reject NP's claims as to why he rejected SP's request for help and note he chose not to do it but has never properly explained why. This is where s136 of the EA may be of assistance – C has a case that you did this bceause of my GC belief. R says its all about getting alt LA – their expl makes no sense at all. They tried to expl. NP made the ludicrous claim that he was better placed to assess how to deal with SP's claim three weeks before her first tribunal than the C's legal team. He must have known that was nonsense, but it;s that sort of excuse making that you are entitled to say there is sufficient weight of evidence even if quite. lot of it (as often the case in ET cases) circumstantial.
Finally of the three claims, GT's failure to seek assurances that SP asked her to seek. Failing to get an unequivocal promise from NHS Fife that no men would be able to use the F CR, the C changed tack and asked GT to write to NHS Fife to seek three quite general assurances
and to copy that req to Fife Health Board. Any union should have been willing to ask of any employer. SP asked GT to be found at p459:
(i) it understands and accepts that it staff have the right to discuss matters of common concern and organised to address them and that this includes the use of female only Spaces by male staff and there will be no disciplinary consequences for anyone who does so;
This first ask is ought to have had partic resonance with TU – the whole point of a TU is that workers are better able to assert the rights of their employers if they do so collectively
Second thing:
(ii) you understand and accept that sex realist or gender critical beliefs are protected under the equality act 2010, and that it must treat discrimination on this ground in the same way as it would treat discrimination because of any other protected characteristic
Again that should have been wholly unexceptional statement of what Forstater means and something an employer should not hesitate to confirm and union should not hesitate to ask it confirm.
Third thing:
(iii) it acknowledges that in Lyte of the Supreme Court's judgement in For Women Scotland, where it reports to provide single sex facilities for women. It is not entitled to permit those facilities to be used by men and that "men" for these purposes includes men who identify as women irrespective of whether or not they hold a GRC
In a sane world that should have been a wholly uncontroversial proposition which the union should not have hesitated to ask the employer to affirm.
[NC is coughing badly. Reqs a 5 min break – she says she hasn't got long left but she can't continue now]
[J agrees – she leaves for 5 mins.]
[we're back]
I was talking about the C's reqs in her letter of 29 Aug 2025 and I think I got to middle of par 22 – the three asks that the C was asking for were uncontentious. GT reframed the qs in terms of only being about SP and she didn't send them to every member. Didn't
tell SP that's what she was doing and didn't share those asks with NHS fife RCN members – do compare p463 and p457. She said she was only rewriting those asks in her own words – but she made the asks less far-reaching and forthright or to draw them back to SP's case – that is not coincidence – it is however consciously and it doesn't have to be consciously -if she'd done it in the way SP asked her she'd be publicly backing the rights of the union's SR membership and she was not able to do that. It might not have been conscious or it might be because she worked for a union in the grip of GI who would find SP's propositions unacceptable.
GT was willing to push SP's requests after softening them and behind the scenes – she simply could not have done it – even months after the SC ruling – it would have run counter to the R's values – to say it would have run counter to GI.
The issue of limitation is still live in relation to SF's failure to give and get proper advice. SP's complaint about SF's failure is out of time unless it's part of a course of conduct – she relied on the clear fact it was part of a course of conduct because R was
repping C in the workplaces and was in the grip of GI throughout and it coloured the way she was treated.
I want to end by reminding you of the background of the Carr review and the dismaying findings of misogyny – male voices to dominate shouting down of female members
and sexual exploitation of F members. Problems as deep-seated as that are not eradicated in a couple of years. In light of the findings of the Carr review – which I would invite you to re-read – in light of those profoundly dismaying findings of the RCN which should have
caused it to prioritise… esp as 86% members are women – it should have prioritised eradicating misogyny, but misogyny and GI are aligned – GI prioritises the wish of a small group of men – some who profoundly wish tehy were and others with diff motives, but without distinction between harmless men and Ellie Mulreany and Freda Wallace – GI makes no distinction. It says TWAW and should have every access to female spaces and that is destructive of everything which has been created over centuries if you look at women in prisons – every protection for women by opening up everything to men – it is misogynistic because it allows a small number of men to trample over the needs and rights of all women. When it comes to the Carr review do read it in the light of the R's EDI strategy.
p260 of the bundle…. the R 2024 RDI strat – the material on p264 – the whole of it for the absence of any or any sig treatment of misogyny or sexism – the Carr review said it was a big issue – there was nothing of the sort you might expect or hope for in this EDI strat
On p264 on th RHS – there is no report back on progress of tackling misogyny and sexism. It is consistent that sexism is not to be named – instead there are claims that sex is a spectrum, that there all sexes and genders – a delib attempt to dilute and blur sex as a cat in its own right – to diminish sex and its consequences. The wilful desire to turn the telescope to the blind eye shows the depth of misogyny and the evidence of the extent of R's toxicity in its commitment to GI. And its for all these reasons I would ask you to allow the C's claims.
[NC makes it to the end of her submission. We return at 1.15pm to hear from David Hay KC for the RCN]
[court is sitting]
J clerk is just going to come in with some more water for those who need it
[we wait]
[water has arrived]
J thank you Mr Hay…
DH you will have my written closing subs – reasonably substantial – I will just read it out. One overarching submission I would make is that there have been on occasions for you to consider as part of the factors in determining shock hope and morals and as I am sure you aware it is not a court of morals it is a court of law which makes decisions on the evidence placed before it and I am sure J you will be astute to recog the boundaries and matters which may stray somewhat beyond it as juries are reminded it is not the qs from counsel which amount to the evidence in a case it is the witness answers in conjunction with other docs and agreed facts…
Turning to my subs – in my first par – it is for the benefit of the reader I will pick up from my second par is that all three claims before you should be dismissed – i develop them under four chapters – evidence, heads of claim, relevant law and app of heads of claim to rel law
Evidence of all the Ws (witnesses) from what yuo have heard. C was gen credible – general chit chat about DU in the dept was being described as being against the wishes of a lot of staff changed to a few people being uncomfortable – when asked why others had not come forward to
ET – C said I think possibly it was fear – to which little probitive value should be attached – she accepted she did not use GC or SC to SF nor in review meeting on 7 March 2024 – she agreed SF had sent a written rationale on 20 Jan 2025 – she accepted she did not raise any concern about GT's not copying letter to Fife members nor GT terminology. When asked about 13 Feb file note advice p334, that MG had given good advice bu t wanted advice from RCN at that stage. No suggestion RCN had failed her until 3 March 2025 over a year later. Despite SP had every oppo to make that suggestion from 13 Feb 2024 onwards – C appeared to accept that it was a complaint made in response to the union not providing her with LA
C was keen to suggest that as of Dec 2024 there was only a possibility there was a disco about a 2nd claim – when the evidence showed there was detailed legal disco about it.
When asked how often GT contacted her she said two or three times just to check in – C minimised
contact with GT – it is inconsistent with doc evidence – GT kept her appraised, she raised the concerns C asked for to DM at NHS Fife and in emphatic language. What was left of C's complaint was that GT did not copy her fellow members into her letter.
Neale Hanvey gave short evidence about his contact with C and her mother. The boundaries of his evidence did stray into sort of support expected of a union and recognised it was subjective. He started one answer with his feeling at the time and ended with a Times article last
weekend – not known if it was the weekend before the tribunal it started or before he met the wintess.
Lisa Mackenzie – gave evidence in a reliable measured credible manner. In her e i c she didn't draw the connection between prisons being in her RCN portfolio and
I would suggest you are careful of her evidence of the Edin Uni event, the Edin Uni press issue and the her disciplinary. Her recollection of the factors involved was some time ago – her evidence from that period was not tested at the time. Expression of concern re her safety to her line manager re Ellie Mulreany – but her lm did not revert to LM. LM did not tell her lm EM's name nor show her the tweets. She also confirmed she did not follow the matter up.
Jenny Wilmot presented as an engaging nurse practitioner and gave her evidence in a no nonsense manner – her account of the SCj session – she acknowledged it was for anyone who was upset. She thought JGMs presentation was accurate. She said the process was not glitch free
and the most crit she made of RCN staff was how she was thanked for being polite and for the way the facilitator responded to "Hazel". She described the name-calling in the chat as all being from RCN members. Pauline Fox was upset at the outset of her evidence – dismissed other people's upset as "tears and snorters" she criticised the "shocking" handling of the session and the abrupt ending of the session. The most notable feature of both evidence and the sessions was absence of GT SF and NP
Stephen O'Grady gave credible evidence albeit difficult to verify on claims of nurses – there was no written evidence from him in the bundle and so it was difficult to assess which nurses were RCN members, how many of them he was dealing with. Even if his evidence was reliable as far as it goes it's hard to draw hard inferences from it.
Understanding that Ms Melle was upset by her experience – she was clearly an unsatisfactory witness. Her evidence was at odds with the doc evidence – tried to downplay it. When taken to an email explaining support proposed – she said her dissatisfaction with RCN was in her mind
but she made no ref to it in her corr with RCN at the time. Expressed incredulity with being asked to provide reflection and that no legal advice was provided – she was provided with legal and advice and the preparation of a reflection was only if she felt able to do so.
IN my sub her account was exaggerated embellished and the tribunal should have no regard to her testimony not supported by contemporaneous docs.
Bethany Hutchison was measured and on an even keel. She appeared to commend support from SC (RCN exec).
Norman Provan was an impressive witness – making concessions and gave considered answers. Consistent with all of the Rs witnesses. Nothing he said was inconsistent
with the On the Case leaflet.
SF – whilst on his own admission something of a mumbler he was a straightforward witness. He was xe'd not on the detail of what he said – but on a number of hypothetical situations
SF and other witnesses had propositions put to them in aa number of hypothetical scenarios in which to contrast the RCN's supposed adherence to GI – but the idea that the SC's judgment was entirely clearcut – but this was undermined by the decision of the inner house between 2023 to 2025 held that the definitions of man woman and sex were not confined to bio sex.
This binds all courts and tribunals in Scotland. The SC's decision overturned the Inner House decision and had declared the law to be opposite. This reinforces SF's belief that DU could use the F CR. It is the holding of an understanding based on a contemporaneous understanding
of the law. The alleged adherence to GI beliefs was changing DU's pronoun from he to she. It was undertaken in haste – it was a piece of casual note-taking given the scrutiny in this case of a conveyancing document.
Giving people pronouns can be explained as part of one of the general civilities of life rather than adherence to an ideology.
SF was given exam type questions on employment law on Higgs and need to address an issue with urgency. as SF put it – there were a number of ways the case could have played out.
A substantial approach to SFs evidence was to put a biased legal gloss on the first convo between SF and SP – he was not asked for legal advice at that time.
GT was conscientious ind and asked to offer opinions on docs she had not seen previous to the trial.
[diversion into the legal meaning of FWS1 decided at the inner house – he is reading legal interpretation]
Observations of bio sex in the EA are obiter dicta of the inner house case – FWS1 was obiter in FWS2 it came into focus in the ratio descidendae
of the inner house decision
GT said she was pleased about the SC ruling but it made no diff to the way she would treat any member – she seemed to me to be a diligent RCN officer seeking to help her member and understand what was being asked of her
Patricia Marquis was an impressive witness – considered and made concessions – her evidence on not picking a side should be accepted, she was striking a balance and being fair to both sides. Her evidence that the SC was complex was backed up by JW and consistent with the push
for more specific info. Her own experience of TRAs in RCN was that they were not frightening. The response to the Carr review was dealt with more swiftly than standard EDI practises and had hundreds of action points.
Heads of Claim
1. Failing to advise she might have a legal claim
2. Treating her less favourably in refusing request to assist with 2nd legal claim
3. Treated less favourably in failing to copy GT's letter to NHS Fife's RCN membership
First challenges action or inaction of SF
Second is NP's decision in refusing legal advice and
Third is GT not copying letter to NHS Fife membership
This case falls not under s39 of the EQ as a workplace claim but as a TU claim
[goes into legal analysis with ref to authorities]
A large part of the C is about a GI belief on the part of R and there are legal authorities I wish to bring to court's attn. [more comparison to other legal cases]
[spending some time on the case brought against Northumberland police attending Northern Pride – case is called Smith – says it's not possible to read it across to this case]
An alt belief to institutional GI approach is to prove a culture of GI at RCN and proof of culture/background can be found in Asia Holdings v Gillespie from 2011. Mr Justice Underhill said… [reads from the case law]
Thirdly culture is an imprecise term and it needs to be understood how that might fit into a proper legal approach. Culture may assist and must not detract from principal task… [I am misquoting the Underhill j]
C would have to demonstrate the culture influenced the minds of the people involved in this claim.
Now to relevant law's application to the heads of claim
[doubt I'll get any of this]
The C's claim is based on treatment by SF of SP on 5 Jan 2024. It's clearly out of time. No explanation provided for the late sub beyond saying it was part of a continuing act – but its focused
on a single act or omission albeit one with continuing consequences. It's not just and equitable to see an extension and one is not sought. And there is no common thread between SF's actions or omission in Jan 2024 and events that occurred much later in 2025.
If you are no satisfied with that arg I make the sub that the events of Jan 2024 do not qualify as a detriment. [goes into what happened as told by SP to SF on xmas even 2023] The C offered no evidence that DU did anything other than be present in the room.
C said she compared DU's presence in F CR to IB being in a male prisons. SF gave a view on likelihood of suspension and explained a case would be opened. An analogy between a male in a F changing room and a violent rapist in a F prison was obviously inapt and offensive
Also at the time the understanding of sex was as per the inner house def rather than the SC. In xe C agreed she had not heard of GC belief – her objection to DU in F CR was on instinct
the case against that R is that SF should have assumed that SP held a GC belief – that she was making a connection between her words and her interaction and that she was making a request for legal assistance
The heart of C's case on this point it was obvious what SP was conveying. It could have been more obvious. People know what they believe and it's not wise for union officers to jump to conclusions. It's far from obv that C wanted specific LA about raising a specific
claim against DU. it's hard to see who there could have been a claim against DU from these bare facts. There was no reason to believe it was a matter of urgency – the time bar can run from the end of a disciplinary process.
A claim against DU would not have been out of time if it had been raised by 24 March – the C contacted Mr Hanvey MP in Jan who contacted Sex Matters who contacted Margaret Gribbon who by 5 Feb appeared to have funding on what SM described as a "strategic" case.
By 12 Feb Legal Action was being discussed as likely – and on 24 Feb a "likelihood" – still no request from C to the RCN for support.
There is a request in March for assistance from RCN, but it is purely workplace related and there is no interest in seeking help for legal claims. Drawing that together – neither C nor C's sol sought RCN's help to raise a claim –
by 6 March 2024 – MG was instructing SF not to have any involvement in SP's legal claims. There was no need for SF to raise issue of legal support.
The C and her advisor were perfectly content with what they were doing legally. They had found their tribe and got financial
support from an org which saw this as of strategic importance. This head of claim falls that the first hurdle.
There is a suggestion in C's head of case that SF was motivated by GI adherence. This assertion faces diff based on the authorities – it is not enough to say in xe "you know what I mean by that" – GI is diff from and in oppo to GC – it must be show that it was synonymous with
destroying SP's right to be GC. [goes to Forstater par49 and reads to it]
Other elements C relies on are scattered across regions and periods of time. LM's problem was with Rachel Cackett and fell short of an ET – she had no probs with SF. Matters re DN was not picking a side
particularly given Sarah Dodsworth's actions. Jennifer Melle's sweeping allegations re the RCN supposed lack of support which is contradicted by docs.
Docs shown to court – such as blog posts concerning to RCN's attendance at northern pride and fair care for trans patients show RCN balancing viewpoints as opposed to picking a side.
The legal comm pieces referred to in evidence in the legal update on Forstater there is nothing unfair about that short summary in that magazine. The only individual who appeared to took issue with JGM's analysis of the SC ruling is C's counsel. Neither JW nor PF had a problem
with it. The "secret" session for GC people on the SC ruling was balanced by one for TRAs and the only reason they weren't publicised was to stop them getting out of hand like the open ones.
The merch evidence doesn't anywhere for the C to demo they have picked a side other than just showing toleratnce.
There is no ubiquity of GC colours and no evidence about their use of suffragette colours other than suggested by my learned friend.
The yougov poll does nothing in my submission does nothing to drive any diff conclusion on the evidence and the presence of a T member participating in a workshop session says nothing GI bias and as regards "some of the more colourful tweets" of Freda Wallace – there is nothing to suggest that FW was acting on behalf of the RCN in a manner which would engage the code of conduct.
That leaves the tribunal – I submit – when scrutinishing that first headed claim the motivation needs to be of SF and SF alone rather than an automatic application of an institutional belief or culture. That claim is squarely focused on actions or specific inactions arising
without the involvement of any other RCN member and does not engage any alleged institutional bias. SF did not reasonably appreciate that's what was alleged to have been asked of him because it was not the situation in hand. SF was not influenced by institutional belief.
Onto the second claim – refusal of legal advice – NP was the sole decision maker in respect of the request – he set out his reasons on 17 Jan 2025 and 24 Feb 2025 – that they were inextricably linked to the first claim and had taken legal advice on the second.
He set out his conclusions at the time and they are entirely consistent with the union's procedures. One thing that didn't get touched on was what might have happened if LA was provided. It says in On The Case that if there is a conflict of interest the RCN would usually withdraw
The C had no intention of relinqing the services of existing sols – what if the R sols provided advice that disagreed with C's existing providers [asks qs on how it might cause problems]
so re this claim NP was decision maker – took time to consider it – took into account procedure and possible conflict and came to a decision entirely in line with policy. Something he had been enacting over 18 years experience.
Even though there is discretion there is nothing wrong with adopting a bright line and nothing in this case in which C had a lot of ongoing LA made the case for that line to be crossed.
This claim should be dismissed. Turning to third claim about GT's not sending correspondence to all RCN members at NHS Fife and changing the words of her request of RCN. In xe C said she did not have a problem with GT's words and in no way could be a detriment on the evidence.
As I understand this element of the case proceeds on the basis this letter was not copied to all RCN members. Counsel's qs are not evidence. There was no evidence that C was unhappy at the time. C has brought lots of witnesses from all over the country but none from Fife.
There was no evidence there were people waiting in the wings just waited to be prompted by a letter from the RCN. GT said it would be unusual to send a letter on behalf of a member to all members. This should be dismissed – as should the entirety of the claim.
DH those are my subs
J no qs – NC would you like to come back on this
NC yes if we may after a short break
J yes of course
[10 min break. court rises]
[we're back]
J thank you
NC points of reply in order to DH's subs – in par 4 DH deprecates C's evidence that there might be others also uncomfortable with DU. Not relevant. Q for tribunal was the reason for R doing what it did. No reason to doubt her evidence…
and R's witness's accepted the YouGov poll could be expected to share those concerns. So it's not clear where DH's attempt to cast doubt takes him. Also his claim in par 5 that SP didn't raise concerns to GT. GT had not done what C asked her to do and the q for you is why not?
DH says what seemed to be left by way of complaint was teh failure to copy in – my response to that is that C wasn't able to have abandoned her case as she was not able on the spot as a non-lawyer to construct a textual argument as to what GT had done. It's there in the evidence
and you can make your decision on that. GT's failure to make this public is wholly consistent with its adherence to GI and a partic detriment to SP who was isolated in being the only person to come forward, despite there being others who she says were too frightened to come
forward. And we should believe her on that.
[rattles through time bar and DH's take on LM's evidence]
DH said LM's incredulity at being asked to prep a reflection – single most important part of her evidence – she had been racially abused by a man because she used masc pronouns
he used the n-word at her repeatedly and the Rs response was to ask her to write a reflection ie manifest some contrition
BH was an entirely credible witness and her account of SD's rattled reaction when her letter was made public was telling of the R's adherence to GI
And that's a thread which runs through this case – a willingness by R to try to do a good job behind the scenes but it comes to a "screeching halt" whenever it is ever asked to do anything public.
For its GC members. That said the rep in BH's case was only willing to attend a meeting with management "in a listening capacity". – v strange way for a rep to behave.
DH said NP did not contradict the on the case – NP said he had no discretion – it was clear he had discretion
and he and his colleagues regularly exercised that.
in par 29 DH is talking about the suggestion to SF that it was obvs improper for DU to be present in the F CR and he says it entirely overlooks the Inner HOuse of the Court of Session construed sex had two meanings. That is
true as far as it goes. In FWS2 which considered the effect of a GRC – until SC handed down its judgment – a TiM who had a GRC would for EA would be a woman. DU did not have a GRC. DU's case was governed by FW1
And FWS1 had made it quite clear that whatever the position of TiMs with GRCs – there was no q that TiMs without GRCs were anything but men.
Even those with protected char of GR.
FWS2 concerned guidance that sex meant bio and certificated sex and decided it couldn't mean that.
So contrary to what DH says – and all this analysis may be somewhat abstract to what SF may have done or not done. It was not the law that anyone who considered themselves to be a woman was a woman. That was never the law, but it was widely believed to be the law.
FWS2 cleared up the misapprehension that having a GRC made all the difference.
In par 30 – he cites Adams v Edin Rape Crisis Centre – re using pronouns is just being polite, but it's not a reason when a man who is violating women's boundaries and privacy of a woman who is
complaining about it. She must be entitled to speak in plain terms about this. She cannot have to revert to the preference of the aggressor in that situation. Aggressor is the assumption her TU rep should be making in that situation
under the heading Institutional GI belief at par 48 where DH is put to proof of IGIB – distinguish Smith from Peggie. Smith was relied on by C as illustrative – to explain GI, what it is, what it means and how it manifests – it's not sought to be binding as DH appears to be
tilting at.
The q of whether GI is WORIADS and it's another matter and its not before you on this occasion. and the reason for that is because no one has been accused of discrimming against anyone for their GI belief in this case or to the best of my knowledge anywhere else
Nobody ever does get discrimmed against for the GI belief – or at least nobody has yet.
[deals with limitation point Hendrix v Met Police in par 52 – she reads from it…]
DH raised the comparison to IB. SP was on her own at midnight in the F CR – she'd had a menstrual flood and needed to sort herself out – there was a man in there standing his ground and she was trying to defend the violation of her boundaries she drew a parallel with IB because here was a man in a female space and IB was in the news as a man who was in a female space. It doesn't mean there was a comparison between DU and IB because IB was a rapist.
DH SP's failure to declare herself GC in her first convo with SF is a straw man – it is obvious a man should not be in an F CR. Before GI came along or even after, if a man who didn't say he was a woman at that point walks in looks her in the eye and closes the door behind him
is harassing behaviour. The right thing for a man to do if he walks into a F CR is to back out and apologise. Not walk in close the door and stand his ground. That's harassment.
Doesn't matter if he's got a ponytail. Or might wear a skirt.
Were he not blinded by GI he would see that. GI told people not to see that a man alone with a woman at night refusing to leave a F CR when challenged is menacing behaviour.
SP grew up knowing men are men and women are women and women deserve privacy and then suddenly behind her back the rules were changed and now she's a bigot for expressing those views. "SP learned the hard way what being GC meant"
SF did not immediately ID that SP was a victim of a serious injustice and that was his job and he had been comprehensively disabled from doing his job properly because GI had the org which employed him comprehensively in its grip
I did not say to witnesses "do you know what I mean by that" it was quite carefully explored with the witnesses as to what they understood about GI and SR.
All witnesses accepted GI was opposite of SR – and inimical to it. It doesn't have to destroy the rights of people with GC beliefs – it treats GC beliefs as bigoted and hateful
At par 26 I learn the word adminical and I am grateful to my learned friend
DH said the only person who had a problem with JBM's explanation of the SC ruling was me, that may be true, but the witnesses aren't lawyers and its not for them to draw holes in that. the tribunal has the evidence and submissions
There is nothing to suggest and no evidence before you to suggest that the YouGov polling is not true. It can and should be trusted.
At par 94, Mr Hay says application for LA was supposed to be a way of securing funding – there is no evidence for this and if NP did not assess on that basis it doesn't help R
Finally I want to take issue with something DH said by way of intro – he said there were occasions in my submissions re shock hope and morals and urged you to decide on evidence. You do of course have to determine the claim on the evidence
But you bring your own experience to bear on the case and inevitably a judge brings their own moral compass. much of your function is to assess what is plausible, the motivations of someone. If you see a witness unable to confirm that affirming a eunuch ID of a little boy
is extraordinary evidence because it is morally repugnant and you can take into account of that and the implausibility of a senior person that position is morally wrong. If PM cannot condemn that and say god knows how that got in there then something has very badly come unstuck
and I think that thing is GI and not just with PM but across the whole healthcare sector.
J thank you I need to review the evidence I will let you have a written judgment as soon as I am able to do so.
[hearing ends. trial ends]
[I am going to go and write these submissions up. Thanks for reading.]
