NHS England has published new guidance requiring hospitals and GP surgeries to segregate wards, lavatories and changing rooms by biological sex, not gender identity, ending a policy that allowed trans women to use female-only facilities.
The guidance, which applies to patients and staff, comes 18 months after the Supreme Court unanimously ruled that sex must be grounded in biology and not self-identification under the Equality Act. It replaces longstanding NHS guidance that said trans people should be able to use whichever facilities they prefer.
Victory for gender-critical campaigners
The move represents a major victory for gender-critical campaigners and means trusts must stop the heel-dragging that has seen some continue to flout the ruling. NHS England, which is being abolished and absorbed into the Department of Health and Social Care, has told hospitals they must comply with a judgement made in the For Women Scotland v Scottish Ministers case in April last year that stated the words “sex”, “woman” and “man” in the Equality Act 2010 refer to biological sex.
From now on, NHS trusts must ensure single-sex spaces are not used by those of the opposite biological sex, even if they identify as a different gender. However, NHS England has yet to clarify how rules that are based on biological sex will be implemented and monitored to ensure compliance.
Darlington nurses welcome guidance
Nurse Bethany Hutchison, one of seven nurses who won a legal fight against County Durham and Darlington NHS Foundation Trust, which allowed a biological male identifying as a woman to use female-only staff changing rooms, said: “Biological sex is not an optional belief. It is a material reality and, following the Supreme Court’s judgment, it is the basis upon which sex must be understood in equality law. We therefore welcome this clear and necessary guidance from NHS England.”
She added: “The test now is whether NHS trusts will actually follow it. Too many NHS institutions have been ideologically captured on these issues, leaving frontline women to defend rights and protections that their employers should have upheld from the outset.”
Mrs Hutchison, whose fight and victory at an employment tribunal sparked a nationwide movement, said: “The Darlington nurses should never have had to take their own employer to court to secure privacy, dignity and lawful single-sex facilities. Enforcement cannot continue to depend on the courage and personal sacrifice of individual nurses.”
She added: “NHS England, regulators and trust leaders must now ensure that every NHS policy is brought swiftly and lawfully into line with this guidance, the EHRC Code and the Supreme Court’s ruling. There must be clear oversight, meaningful accountability and consequences for trusts that refuse to comply.”
Concerns over implementation
Maya Forstater, Chief Executive of sex-based rights charity Sex Matters, said: “A year-and-a-half ago, the Government said NHS England’s new policy would be out within ‘weeks’. In that time, female NHS employees have had to fight court battles to keep men out of their changing rooms, while female patients on single-sex wards have suffered the indignity and safety risk of having trans-identifying men accommodated with them.”
She added: “New guidelines for staff facilities and patient accommodation on the basis of biological sex are therefore very welcome, as is the news NHS England is requiring all trusts to undertake an audit of their facilities and bring them into line with the law.”
Forstater said she was concerned that NHS England has not said how rules based on biological sex will be implemented. She said: “NHS patient data is a mess, with potentially thousands of trans-identifying people recorded as the opposite sex. For years, staff have been fearful of getting into trouble for ‘misgendering’ a trans-identifying person. NHS England leaders need to make clear that there will be no more nurses disciplined for calling a man ‘he’, as Jennifer Melle was.”
She added: “After a decade of policies based on self-ID and the influence of transactivist campaigners, many NHS trusts have embedded a culture of gender ideology that has pushed staff to treat a claimed transgender identity as if it is a person’s sex. NHS England must now follow up with a clear directive to reverse trans ideology within trusts and consider the publication of scenarios or case studies that will empower all staff to speak honestly, and enable regional leadership to stand up to transactivist bullies.”
Call for clarity on pronoun use
Andrea Williams, Chief Executive of Christian Concern and the Christian Legal Centre, said: “This is welcome and long-overdue guidance. It has taken a long-fought battle, led by courageous women such as the Darlington nurses, to put biological reality back at the heart of NHS policy.”
She added: “But an important gap remains. The guidance does not give NHS staff the clarity and protection they need over pronoun use. Jennifer Melle was investigated, disciplined and referred to the Nursing and Midwifery Council after declining to use female pronouns for a biologically male patient. She was eventually cleared, but no nurse should have to endure that ordeal for using biologically accurate language.”
Williams said: “NHS England must now make clear that healthcare professionals cannot be compelled to use preferred pronouns or penalised for declining to express beliefs about gender identity that they do not hold.”
