‘You’ve got a willy, so you’re a man’ – Transgender case tribunal barrister

A barrister representing a nurse who objected to sharing a changing room with a transgender doctor has described her legal argument as “you’ve got a willy, so you’re a man, innit?”

Naomi Cunningham represented veteran nurse Sandie Peggie at an employment tribunal against NHS Fife and Dr Beth Upton.

Ms Peggie, who has worked at the Victoria Hospital in Kirkcaldy for 30 years, took the health board and Dr Upton to tribunal after being suspended following an incident on Christmas Eve 2023 in the female changing room.

She lodged a complaint of sexual harassment or harassment related to a protected belief under section 26 of the Equality Act 2010 regarding three incidents when they shared a changing room: indirect harassment, victimisation and whistleblowing.

Ms Peggie was suspended on January 3, 2024, after Dr Upton made an allegation of bullying and harassment, the tribunal heard.

It has adjourned until July but the case prompted the Equality and Human Rights Commissioner to write to NHS Fife and the Scottish Government to remind them about workplace legislation around single-sex spaces.

Ms Cunningham, of human rights charity Sex Matters, told Holyrood magazine that gender legislation “reignited” her enthusiasm for law six years ago after she became interested in it from Twitter, after years of thinking about retirement.

She said a colleague had “joked about my approach to the law which he summarised as, ‘you’ve got a willy, so you’re a man, innit?’

“It’s true, my legal argument is ‘you’ve got a willy, so you’re a man, innit?’.”

She told Holyrood magazine that gender legislation had given her a “a good war”, adding: “I don’t think I’m anything like as good as my fans think I am.”

Ms Cunningham said initially she believed it was “a bit mean” to refuse to use preferred pronouns – but was now “more and more determined to use real language in court”, which she sought permission to do in the NHS Fife case.

Ms Cunningham said: “I started thinking that the people who wouldn’t use preferred pronouns were a bit mean, that it wasn’t kind. Why can’t we just be polite?

“You can’t say what the problem is with a man at a rape crisis centre who says he’s a woman, unless you can say the problem is that he’s a man.

“If you have to say ‘the problem is she is a transwoman’,  it sounds as if you’re objecting to a certain sort of woman.

“You’ve got to be able to use real language. I’m getting more and more determined to use real language in court.”

Ms Cunningham said the phrase “gender critical” described “the mainstream, ordinary acknowledgement of reality”, but in one first instance judgment “put me in the same category as Nazis”.

She said: “Everybody knows that they’ve got a mother, and their mother could only have been a woman, and human beings only come in two types – the sort that can give birth and the sort that can beget children.

“And yet there is a mad niche idea that gender identity somehow trumps reality.”

She she was a “gender-non-conforming child” and “it did occur to me that I’d be at risk of being pushed towards childhood transition if I’d been 30 years later”.

Ms Cunningham said: “Rage does fuel me because there are so many things to be profoundly angry about: the grooming of children into mental ill-health and mutilation; the bullying, silencing and cancelling; the corruption of so many institutions; the sheer waste of time, money and energy on dealing with such nonsense.”