Sex is “assigned at birth”. Women can hold gender-critical beliefs, but they should be careful about how they express them. Trans women are sensitive, and challenging them in a women-only space constitutes an attack on their “sense of identity” and “psychological integrity”. This is a summary of some of the choicer comments made in yesterday’s judgment of an employment tribunal in a case brought by nurse Sandie Peggie against her employer NHS Fife.

To be clear, Peggie was not on trial at the tribunal, which was hearing her case that she suffered discrimination when she was forced to share a changing room with a male doctor identifying as a woman. The tribunal concluded that Peggie was harassed by her employer but dismissed her claims that she was victimised and discriminated against. It also dismissed claims made against the trans doctor, Beth Upton.

But the panel has torn into Peggie, accusing her of “impermissible manifestations” of her gender-critical beliefs. In a jaw-dropping section of the judgment, it even says that some of her comments “were in our view what amounted to an incident of harassment” against Upton. Given the mixed conclusion of the tribunal, it sounded like a score draw. But a very different picture emerges from the full 312-page judgment.

The panel frankly admits that its conclusion about Peggie’s behaviour contradicts the outcome of a disciplinary hearing, which did not uphold a complaint of harassment against her. It even suggests that Upton was entitled to regard some of Peggie’s actions as a “hate incident” within the terms of NHS Fife’s bullying and harassment policy.

This is a win for Peggie only in a narrow, technical sense. She was criticised throughout the judgment, described as giving evidence “that in some particular respects we did not consider to be credible”. The panel said she denied being biased, but it regarded some of her messages as “indicative of views which could be described as transphobic”.

Upton, however, was “a credible and broadly a reliable witness”. The panel agreed it was legitimate to cross-examine the doctor on the issue of personal identity but it could see Upton was “affected by that, even if there was a clear attempt not to show that”. It even praised the doctor for not taking up a suggestion by an NHS colleague that Peggie should be reported to the police.

The nurse, by contrast, displayed a “dismissive attitude towards gender reassignment as a protected characteristic” and “does not consider that a trans person is anything other than a male”. It’s a belief shared by most of the population, as it happens, but the judgment explicitly states that it understands the term “trans woman” to describe “a person assigned male by sex at birth” who is undergoing a “transition to [being] female”.

This is the language of trans activism, largely discredited these days because sex is observed as a binary fact of biology at birth, not randomly assigned. The panel repeated another activist argument, however, when it dismissed questions about women’s safety on the grounds that there is no reliable evidence to show that males pose a “greater risk” to women in female changing rooms.

Despite acknowledging that it cannot ignore the Supreme Court judgement in the For Women Scotland case, it proceeded to do just that. The panel argued that “it is potentially but not necessarily lawful […] to permit a trans woman to use a female-only space […] in the context of work.” Its argument is that competing rights have to be taken into account, and parts of Peggie’s case failed because she failed to take into account Upton’s human rights.

This terrible judgment takes us back to the days when women were supposed to be kind, put men’s feelings first, and not even mention safety. Perhaps for that reason, it is expressed in a mass of verbiage and ideologically-tainted language, but even that cannot hide its bias against Peggie and her lawyers. It cannot be allowed to stand.

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Joan Smith is a novelist and columnist. She was previously Chair of the Mayor of London’s Violence Against Women and Girls Board, and is on the advisory group for Sex Matters. Her book Unfortunately, She Was A Nymphomaniac: A New History of Rome’s Imperial Women was published in November 2024.

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