Mick Hartley

Finally, on the Sandie Peggie tribunal judgement, Alex Massie in the Times:

The long-awaited judgment in the employment tribunal brought by Sandie Peggie against NHS Fife and Dr Beth Upton is a near-masterpiece of fat-headed and meretricious special-pleading. Although it found that NHS Fife had indeed harassed Peggie by allowing a male doctor to use a changing room reserved for women, it dismissed most other claims on the basis that it would, apparently, be unkind to allow them to stand.

Upton, the trans-identifying doctor in question, is by law and biological reality a man. Despite this handicap, Upton identifies and dresses as a woman. This deeply impressed Alexander Kemp, the judge presiding over the employment tribunal. According to Kemp, the doctor has “changed essentially all the non-physiological attributes of sex”. He wears lipstick, he has long hair and he has adopted “a pitch and tone of voice consistent with that for a female” and if that don’t make him a woman, what could?

He’s a man. That’s all that matters in this case. However fragrant and dolled-up and nicely spoken, he’s still a man.

Throughout the judgment there is a pungent whiff of class condescension. Upton is Officer Class and Peggie is very much Other Ranks. Places, quite literally, should be known — though this applies to some people more than to others.

Other aspects of the judgment are almost heroically mistaken. At one point Kemp writes that there is no evidence trans women — biological and legal males — pose greater risks to women within a single-sex space than other women. This thoroughly misunderstands the objection. Being trans is not the issue; being male is and there is no way to differentiate between a trans-identifying male and any other male in this regard. The wearing of lipstick, you know, is not dispositive. Similarly, comparing Upton to Isla Bryson does not suggest the doctor is a rapist; it merely posits that, like Bryson, he’s a man in a space hitherto reserved for women.

Moreover, some things truly are binary. A single-sex space, where reasonable, ceases to be single-sex if people of the other sex are admitted to it. This is not difficult to understand and we should expect even lowly employment judges to be capable of grasping the point.

The law is all-seeing even if homo sapiens is not. Yet according to the tribunal, Upton’s presence in the female changing rooms only became problematic once someone complained about it. This appears a novel variation upon an age-old philosophical inquiry: if a tree falls in the forest and no one complains, has it really fallen? Actually, yes it has and silence in this instance ought not to be confused with consent. The best that can be said of this obviously appealable judgment is that it is legally incoherent.

It is probably much worse than that, too. For much of this judgment cannot be trusted. Credit should be apportioned to Stuart Campbell, proprietor of the Wings Over Scotland website, for identifying that several of the citations used to support the judgment’s conclusions are at best wildly misleading and, in some cases, possibly entirely fake..

The misquoting, and the trans activist language – “assigned at birth” and so on – all serves to further muddy the water. As the Labour government has been doing ever since the clear Supreme Court ruling.

The Equality Network, Scotland’s government-funded LGBT charity, now declares that Kemp’s ruling overrides the Supreme Court’s findings. This is a novel theory of jurisprudence. But it also demonstrates that the confusion evident here is partly the consequence of ministerial foot-dragging. The British government and the Scottish government have both promised to uphold the Supreme Court’s ruling in theory while in practice doing very little of the sort. This prevarication, rooted in cowardice and a fear of upsetting favoured constituencies, should shame both governments.