Wings Over Scotland

The first and most important thing to note about yesterday’s judgment in the Sandie Peggie tribunal is that it’s a very big victory. The tribunal found that Sandie Peggie was gravely and heinously harassed by her employer through no fault of her own, and she’ll be entitled to substantial compensation as a result.

It also ruled, repeatedly and unequivocally, that Dr “Beth” Upton (who’s referred to in the judgment as “the second respondent”) is a man.

After that, it lost its mind.

Because this is extraordinary.

In fact that’s EXACTLY what the Supreme Court DID find, because if you grant access to even a solitary male then IT IS NO LONGER A FEMALE CHANGING ROOM. It’s a unisex changing room.

(As visual shorthand, extracts relating to the For Women Scotland judgment in this article will be presented in inverse colours to distinguish themselves from extracts in the Peggie ruling. Click pics to enlarge.)

Early on – paragraphs 61 and 62 of 1,272 – the judge flew a red flag.

Fewer than 1 in 100 women are six feet tall or above.

The mere fact of his height alone is very good reason for anyone to believe Upton is a man. But time and time again throughout the ruling, as we’ll see below, the judge basically adopts a policy based on the transactivist slogan “PROTECT THE DOLLS” – that is, that whether a transwoman should be treated as female or not depends on how pretty he is.

(Transactivists divide transwomen into pretty ones they think pass as women – “dolls” – and ugly ones that don’t, who they call “bricks”.)

And that’s remarkable, because there is no ambiguity about NHS Fife’s provision of changing rooms. They are clearly marked as being for females only.

And the Supreme Court was absolutely clear that that could ONLY be interpreted on a biological basis.

It even specifically included changing rooms.

So this isn’t a “belief”. It’s the LAW, and an employment tribunal judge is not entitled to single-handedly over-rule the Supreme Court’s findings about it.

The tribunal grudgingly acknowledged the fact.

And so this makes no sense whatsoever.

The Supreme Court said that you cannot call something a female changing room and let males into it. You can call it a unisex changing area. You MAY, depending on circumstances, not have to provide a female-only one at all.

But what you definitely can’t do is have one and then let even one man into it. If it says “females only”, as the changing rooms used by Sandie Peggie did, then it means BIOLOGICAL females only. (As opposed to what the Supreme Court called “certificated” ones, ie men with a Gender Recognition Certificate.)

(It’s important to point out that the Supreme Court was only even considering whether single-sex female spaces should be accessible to transwomen with a GRC. Dr Upton does not have a GRC, and NHS Fife should never have been even contemplating admitting him to a women’s space.)

But then the tribunal judge starts getting ideas above his station.

The Supreme Court in fact addressed that matter at considerable length. Indeed, it described the conflict as “the principal question” with which it was concerned.

And its findings were crystal clear. (“SDA” is “Sex Discrimination Act”.)

The SDA was amended in respect of trans people in 1999.

But:

Crucially, the Supreme Court found that the correct comparator for a transwoman making a discrimination claim could only be a (non-trans) man, not a woman.

It’s difficult to see where the tribunal judge found any of this to be of relevance at all, since Upton was not the person making a claim and he doesn’t have a GRC. The judge was meddling in matters that were not before his court, and seemingly trying to repeal the Supreme Court’s ruling on his own initiative. Nobody had suggested that Upton had lost his rights to complain about discrimination.

This, then, is raving mad.

Perhaps the Supreme Court had simply thought it so ragingly, blatantly, staggeringly, idiotically obvious that a male without a GRC could not possibly bring a claim of being discriminated against as a woman – because he wasn’t one – that it didn’t need to spell it out for the benefit of dum-dums.

The tribunal judge then embarked on a series of transactivist tropes.

The idea that the ruling means you couldn’t have a male cleaner or repairman in a women’s toilet is so farcically embarrassing that a random idiot on Twitter would be ashamed of it, let alone an experienced judge. Warning signs are usually placed at entrances to female spaces when a male cleaner might be in them, and you’d expect them to be closed if plumbers or electricians were working there, for safety reasons.

That’s not the same thing as some creepy bloke dressed like a drag prostitute prancing around the washbasins taking selfies of himself with his cock out.

As for the last sentence, the EHRC’s interim statement on the Supreme Court ruling was absolutely clear that service providers must not allow a situation where trans people (mostly male-passing transmen) were left with no facilities to use.

Which renders the judge’s subsequent point irrelevant.

The judge then deploys a selective, and altered, quote from FWS.

But here’s that passage in full:

The judge, shockingly, has removed the word “trans” from “trans women”, and omitted the rest of the line which said that even the Scottish Ministers (FWS’s opponents in the case) weren’t suggesting that a transwoman without a GRC – like Dr Upton – should be allowed into female spaces.

On the face of it that’s an outrageous misrepresentation of what the FWS ruling says. The tribunal judge is attempting to give Upton rights which even the Scottish Ministers didn’t think he ought to have, and the Supreme Court unambiguously rejected their attempts to give those rights to transwomen with a GRC, let alone those without.

The SC said that NO biological men, with or without a GRC, could be admitted to female spaces, partly for the purely practical reason that there’s no way for service providers to distinguish between those two groups, since you’re not allowed to ask if someone has a GRC, let alone whether they’ve had their penis chopped off.

But the judge has claimed that the SC actually said “maybe they can, and it doesn’t matter if they’ve got a GRC or not”. That cannot possibly have been a mistake. The unacknowledged editing of the quote to significantly alter its meaning appears to be a deliberate and alarming misstatement of fact, and as a result any appeal is likely to jump all over those paragraphs in hobnail boots.

That is not a matter for you to address, sir. The Supreme Court addressed it and its findings were clear: single-sex means biological sex.

It really is, though. Can’t you read?

Oh, you can. What are you wittering about, then?

And we’ve just shown comprehensively that all of this is wrong:

Upton has NO right in law to complain of discrimination for being excluded from a female space, because – as both the Supreme Court and the tribunal found – he isn’t female. There are no other males, with or without GRCs, who are being treated more favourably than him. None of them are allowed. All males are excluded equally.

No, there aren’t. The Supreme Court considered Article 8 and threw them out.

But we do agree with this:

And we also strongly agree with the tribunal judge’s implication that NHS Fife were probably in breach of criminal law and should be arrested and put on trial in order to establish the legal position beyond doubt.

Because if it was the second interpretation, that was illegal.

This is simply gibberish:

Firstly because Upton suffered no discrimination. He was granted access to the women’s changing rooms. And if he hadn’t been, it wouldn’t have been on the grounds of his protected beliefs, it would have been on the grounds of his sex.

While this is why the Gender Recognition Act 2004 should be repealed:

Because impossible fantasies shouldn’t be law.

At this point the tribunal judge simply loses his marbles:

How is either a service user (a woman in a changing room) or a service provider supposed to distinguish between Pete and a “real” transwoman? By reading their minds? By asking him nicely if he’s just there to ogle them?

This, it appears to have escaped the tribunal judge’s notice, is the entire heart of the gender ideology debate of the last decade. Rapists, inconsiderately, don’t wear badges saying “BEWARE, I’M  A RAPIST”. That’s why we ban all men from women’s single-sex spaces, even though the vast majority of men aren’t rapists – because there’s no way to tell the difference. That’s why there can be NO distinction in law between Pete and a “sincere” transwoman. Is this a judge or Derren fricking Brown?

It’s always worth saying this again, particularly in the light of media reporting and idiot political commentary on the judgment:

No, Ross, HE went through this process because HE made himself the centrepiece of a gross injustice against an innocent nurse, as the tribunal found.

But by this point, and regardless of his repeated findings that Upton is male, the tribunal judge was fully down the rabbit hole.

What does that actually MEAN? In fact we’d been told right at the start.

So the essence of “womanhood” in law is long hair and makeup and dresses and speaking in a “feminine” tone of voice? Bad luck, women in trousers and short hair and no makeup – you’re not really female. If you want to be allowed into the Ladies, get some lippy and high heels on.

At this point the judge moves back onto another transactivist trope – that access to female spaces shouldn’t be by blanket rules but on a “case-by-case” basis depending on how far along in their “transition” they are.

But as we’ve already shown, the Supreme Court expressly rejected that argument because, among other reasons, it’s impossible to police. It ruled that definitions of people’s sex in the law always meant the same thing.

There was no “nuance” whatsoever in its findings.

As we’ve seen repeatedly above, what it actually found was that males had no right to female spaces, and never had had such rights, the end. They had simply been lied to, by people like NHS Fife and the Scottish Government.

The tribunal judge, however, continued to jump the shark.

Good heavens. It’s not often you see a Family Guy meme come to life.

The tribunal judge attached enormous weight to the fact that Sandie Peggie was the only person who’d complained about Upton, and bizarrely rejected the idea that anyone would have been put off from doing so by fear, despite the uncountable examples of women being vilified, discriminated against and even assaulted for doing so.

(Sandie Peggie wasn’t claiming, or required by law, to “speak for all female staff”. She was entitled to complain under the Equality Act both as an individual and on behalf of a group to which she belonged, without consulting any other member of that group, on the basis of a reasonable general assumption.)

Perhaps even more unbelievably, he went to far as to disregard the fact that when Peggie had done so she’d been suspended, and that this may have had a chilling effect on anyone else in the hospital who might have wished to object to Upton’s presence.

All of which, it ought to go without saying to any reasonably sane person, is an open invitation to bullying and intimidation. It says that if transwomen act so menacingly towards women that they’re scared to complain, that fear can actually be weaponised against them in court.

And then came the real show-stopper.

Like, wow.

It was this very site, almost three years ago, that established beyond any credible doubt from official crime data that trans-identifying men weren’t just vastly more likely to sexually assault women than women are, but also vastly more likely than non-trans men.

But since the tribunal was unwilling to even follow links in the evidence presented directly to it, far less do any checking of its own, it’s perhaps not surprising that it allowed itself to remain in ignorance of that fact.

It seems that the tribunal judge, perhaps alone on the face of the planet, simply doesn’t accept the premise that men are a danger to women.

Presumably, unless specific evidence is put before him in the court, he also isn’t sure that the Earth is round, the sea is wet and fire is hot.

But mindbogglingly, it appears that even if the judge had accepted the basic fact that men are a danger to women, it would have been trumped by the fact that Theodore “Beth” Upton thinks he’s a lady.

We had to stop and walk around the room for a bit at that point. But fortunately we were pretty much at the end.

In summary, aside from finding that NHS Fife had indeed harassed Sandie Peggie, the tribunal asserted that the Supreme Court ruling was wrong in numerous respects (including the practicality of policing access to female spaces based on how ladylike a man looked and how many bits of his body he’d surgically modified, even though gender reassignment law specifically prohibits such requirements being made on people who want to transition).

It also asserted that there’s no evidence men are a danger to women, and even if they are it doesn’t matter as long as they make the women too scared to complain, or if someone’s given them permission to break the law.

Every legal professional we’ve spoken to has been scathing about the judgment, perhaps most briefly summarised by equality law specialist Audrey Ludwig.

We also enjoyed the heroically understated last line from Oxford University associate professor of law Michael Foran on the Today programme this morning:

“From my look at this judgment there’s quite a lot to think about that we might warrant having further consideration by a more superior court on this.”

An appeal seems overwhelmingly likely. But in the meantime the tribunal’s opinion has no effect on anything other than this specific case. It does not set precendent, or bind future tribunals, and it does not alter the Supreme Court judgment that it appears to have misunderstood so catastrophically badly. Men are still not women.