Gender Divide: How the Sandie Peggie case re-opened the debate over self-ID

With around 15 months until the next Holyrood election, the early indications are that Scottish politics could look quite different come May 2026. A series of recent polls have predicted the SNP will remain, by some way, the largest party but that along with Labour and the Tories, will lose votes to smaller opponents. If the polls are to be believed – and there is still a long way to go – the Lib Dems and Scottish Greens are set to make impressive gains while Reform UK will come from nowhere to secure more than a dozen MSPs. 

At the last election in 2021, few could have predicted the tumult that lay ahead – the resignation of not one but two first ministers, a high-profile police investigation leading to a charge of embezzlement, and the collapse of the SNP vote at the general election only for the party to steady itself under the leadership of John Swinney. Fewer still could have foreseen that the question which would come to define this parliament would not be about Scotland’s constitutional future, but the no-less divisive enquiry – what is a woman?

As MSPs broke for recess earlier this month, much of the country was already preoccupied with the case of Sandie Peggie, the nurse at the centre of an employment tribunal involving NHS Fife. Peggie lodged the dispute after she was suspended by her employer for refusing to share a changing room with Beth Upton, a transgender doctor. The health board would have no doubt hoped it could keep the matter relatively private, an internal HR complaint to be resolved with minimal reputational damage. Instead, the case has become a cause célèbre, exposing not only the difficulties of gender self-identification for public bodies but the Scottish Government’s failure to take them seriously. 

Asked about the Peggie case last week, the first minister declined to comment on the specifics but said that for public bodies, “the legal position is crystal clear”. “There is a legal provision that enables there to be single-sex spaces if that is judged to be appropriate… it’s for individual public bodies and employers to make a judgement about what the arrangements should be…”. Joanna Cherry, a former SNP MP and an outspoken critic of her party’s gender reforms, described Swinney’s comments as an “embarrassing word salad”. 

Right from the start of the government’s attempts to reform the Gender Recognition Act with the intention of making it easier for trans people to obtain a Gender Recognition Certificate (GRC), it was clear the implications had not been fully thought through – at least not by many of those in parliament. Women who sought to raise legitimate concerns about the impact on single-sex spaces, for example, were maligned as bigots and Terfs (Trans Exclusionary Radical Feminists) by activists. Indeed, it is one of the biggest ironies of this whole debate that an extreme fringe of the trans lobby used the rhetoric of hate – language such as ‘decapitate Terfs’ – while seemingly pursuing an agenda of inclusivity and ‘kindness’. 

While former first minister Nicola Sturgeon condemned that sort of incendiary talk, she was nevertheless unwilling to accept there were compelling arguments against the Gender Recognition Reform (GRR) Bill, memorably telling Tory MSP Murdo Fraser in September 2021 that concerns over the impact on women’s spaces were “not valid”. It’s safe to say that comment has not aged well. 

At the end of 2022, MSPs debated the legislation long into the night, eventually backing the proposals in a vote which the government said marked a “historic day for equality”. But amid concerns over its impact on the UK-wide Equality Act, the legislation was blocked from receiving royal assent by the UK Government. More than two years on from that decision and a failed attempt to overturn it in the Supreme Court, the law remains unaltered, despite the huge amount of parliament time devoted to changing it. Yet in practice, many of Scotland’s public bodies had already begun acting as if self-ID was on the statute book. 

Long before the Peggie tribunal grabbed the public’s attention, the case of Isla Bryson highlighted the dangers of accepting self-declarations of gender while exposing the SNP’s lack of critical thinking on the issue. After being jailed for the rape of two women perpetrated while known as Adam Graham, Bryson was initially remanded in a female prison before being moved to the male estate amid a public uproar. At First Minister’s Questions, Sturgeon struggled to call the sex offender either a ‘man’ or a ‘woman’, referring repeatedly to him as “the individual”. “I think that a rapist should be considered a rapist,” she told MSPs. Humza Yousaf went further, saying Bryson was “at it” in an attempt to play the system, apparently unaware that his comments reinforced the concerns of women who had taken issue with the SNP’s gender reforms.

Health secretary Neil Gray and First Minister John Swinney have come under pressure over the NHS case | Alamy 

While Scotland’s ruling party remains in a muddle on the matter, Scottish Labour leader Anas Sarwar does now appear to have come to a belated realisation that he got it wrong on the legislation. Sarwar told a group of male podcasters, to the undoubted annoyance of the many female journalists who had previously pressed him on the matter, that “knowing what we know now, we would not have supported the bill”. And yet the concerns over access to single-sex spaces which have been highlighted by the Peggie case were exactly those raised by female MSPs, including those in Sarwar’s own party, and by former leader Johann Lamont who tweeted: “Memory is a funny thing, is it not?”

“Looking back and reflecting on the process of the GRR bill… the deep regret we have is that we didn’t push harder on the amendments we had as conditions for supporting the bill,” Sarwar said. The Labour leader said his party took at “face value” assurances given by the government that the legislation would not adversely impact on the Equality Act and that single-sex spaces would be “respected based on biological sex”.

And while the legislation was ultimately blocked by the then Conservative government, Sarwar said public bodies such as NHS Fife had undergone “institutional capture”, essentially introducing self-ID by stealth. That’s despite the 2010 Equality Act allowing for trans women – even those with GRCs – to be prevented from accessing women-only spaces and also the Workplace (Health, Safety and Welfare) Regulations 1992 which require employers to provide separate male and female facilities.

Earlier this week it emerged that health secretary Neil Gray had been told as far back as June that NHS Fife may have acted illegally by not providing single-sex toilets and changing facilities for its staff. According to a report in The Herald, Peggie’s solicitor, Margaret Gribbon, wrote to Gray to warn that the health board was failing to “comply with its legal obligations”. She received a response from a government official which said it was the health board’s obligation to comply with the Equality Act. The civil servant went on to suggest Peggie could report her concerns to a national whistleblowing hotline.

After the government attempted to duck the issue by refusing to comment on what it called a “live case”, the matter was finally raised at First Minister’s Questions. Presiding Officer Alison Johnstone had previously upset Tory MSPs by refusing to hear any questions on the matter in the chamber. Johnstone refused to detail her reasons but SNP minister for parliamentary business Jamie Hepburn determined the matter to be sub judice, meaning before a judge or court, and therefore a matter liable to be prejudiced by discussion in parliament. However, at least one legal expert spoken to by Holyrood said that unlike in criminal cases involving juries, discussion of the case could easily have gone ahead without influencing the decision of the tribunal. 

Sturgeon was unwilling to accept there were compelling arguments against the Gender Recognition Reform Bill, memorably saying in 2021 that concerns over the impact on women’s spaces were ‘not valid’. It’s safe to say that comment has not aged well.”  

“Despite sustained efforts by my party, Scotland’s parliament does not want to talk about a case that everyone across Scotland is talking about,” Scottish Conservatives leader Russell Findlay said as he began his question at FMQs. “The SNP focus on the issue of gender has harmed Scotland’s public services. They’ve put their ideology before the rights of women and girls.”
Swinney reiterated that he would not be drawn into discussing the specifics of the Peggie case before accusing the Tories of pushing a line that “is about sowing division in our society”. “The legal position is absolutely crystal clear that the Equality Act protects the ability to have single-sex spaces...” 

Ministers had this week repeatedly referred to health boards being provided with “guidance” but a government spokesperson later admitted the publication had not “gone live yet” further muddying the waters of exactly what information had been provided.

“An NHS Scotland Guide to Transitioning has been developed and shared with [health] boards in advance of publication as is normal practice,” the spokesperson said. “This period is intended to enable boards the opportunity to prepare for implementation before the go live date.”

For former SNP MP Cherry, the government has got itself into an “appalling mess on the law by listening to lobbyists”. The KC is now calling for an independent lawyer to be appointed to review all relevant government policies.

Asked who’s to blame for the current situation, Cherry says: “Nicola Sturgeon and all the MSPs in all the parties who didn’t scrutinise the [GRR] legislation and didn’t listen to the women’s groups and groups like LGB Alliance and Scottish Lesbians who were trying to tell them about the sort of pitfalls we’ve seen with Isla Bryson and Dr Upton.

“Since Sturgeon went, John [Swinney] has tried to distance himself because he knows this is unpopular but for some reason he doesn’t have the courage to go the whole hog like Anas has – and I think the SNP will lose votes over this. 

Dr Beth Upton and supporters arrive at the tribunal | Alamy

“Maybe it’s because Nicola Sturgeon is still pulling his strings. Maybe it’s because the party has been so hollowed out by the failure to deliver independence and the espousing of this gender identity ideology that lots of the sensible people whose support he needs to make this U-turn have either left the party or like me, are still members but are so alienated they don’t want anything to do with it at the moment.”

Peggie will have to wait until later in the year to learn the outcome of her employment tribunal – the case has been adjourned until July. A separate disciplinary hearing, scheduled for earlier this month, was postponed at the request of the nurse’s legal team. Peggie is facing allegations of misconduct, failures of patient care and misgendering Dr Upton, with potential outcomes ranging from no case to dismissal. 

Next month it will be three years since the government first brought forward its gender reform bill. The legislation remains unenacted but far from forgotten, with the associated debate continuing to dominate – and divide – Scottish politics.