Updated NHS England guidance confirms that transgender patients should be placed on hospital wards according to their birth sex rather than their gender identity. This means hospitals can lawfully exclude trans women from female wards and trans men from male wards.
Guidance published after nurse tribunal claim
The amendment was published on Thursday, nine months after a group of Darlington nurses won a claim against County Durham and Darlington NHS Foundation Trust. That case involved trans colleague Rose Henderson being allowed to use women’s changing facilities.
Bethany Hutchison, president of the Darlington Nursing Union, who led the claim, welcomed the "clear and necessary guidance from NHS England" but said "the test now is whether NHS trusts will actually follow it." She urged NHS England, regulators and trust leaders to "ensure that every NHS policy is brought swiftly and lawfully into line with this guidance, the EHRC Code and the Supreme Court’s ruling", adding that "there must be clear oversight, meaningful accountability and consequences for trusts that refuse to comply".
EHRC code and Supreme Court ruling
The wider guidance on single-sex spaces written by Britain’s rights watchdog came into force just over two months ago, while the Supreme Court ruling on biological sex was made 18 months ago. The Equality and Human Rights Commission (EHRC) code had already confirmed that a service must be used on the basis of biological sex for it to be classed as single-sex under the Equality Act.
The EHRC said: "In separate or single-sex services, a trans man will be excluded from the men-only service because his sex is female, and a trans woman will be excluded from the women-only service because her sex is male." This covered a range of scenarios including single-sex hospital wards, which it said can lawfully exclude trans patients.
Clinical needs and alternative arrangements
The new NHS England document, which says all patients "should be treated with respect, dignity, compassion and care", adds that "trans people and others with the protected characteristic of gender reassignment should be accommodated in line with their biological sex". It says hospitals "should identify alternative arrangements" for trans patients in cases "where it would not be clinically appropriate" to care for them on a ward of their biological sex. It adds that "where clinical needs and same-sex accommodation requirements cannot both be met, clinical needs are the priority".
Such occurrences, where a trans patient was placed on a ward of their gender identity, are described in the guidance as likely to be "rare" and reasons should be "clearly recorded and reported nationally as breaches of this guidance".
Scope and audits
The new guidance applies to acute, mental health and community NHS trusts as well as NHS-funded patients in private settings, but not A&E departments, urgent treatment centres or paediatrics. Updated guidance for NHS England staff in hospitals and GP surgeries has also been published. It says single-sex facilities such as changing rooms and toilets should be used according to biological sex.
In trusts with mainly single-sex facilities, "organisations should consider whether suitable and accessible alternatives, such as single-occupancy or mixed-sex facilities with individual lockable rooms can be provided to allow access to facilities in a way that respects privacy and dignity and supports inclusion of all staff".
Trusts have been asked to carry out audits of their current provision, including "whether hand-washing facilities are communal or not and whether options are provided to ensure privacy within single-sex facilities", with the findings expected to "inform local people policies, to identify any changes needed to existing facilities, and support planning for any required capital investment".
