With the news that Wes Streeting has intervened on behalf of the Darlington nurses and instructed Darlington Memorial Hospital to provide a female only changing room, as well as reports that NHS organisations are reviewing their policies on single sex accommodation for patients, it is clear that the recent Supreme Court judgment on the meaning of “sex” in the Equality Act will have a significant impact on health care policy and provision, both for patients and for staff.
What did the Supreme Court decide?
The Supreme Court Judgment on the appeal brought by For Women Scotland was handed down on 16 April 2025. The five Supreme Court judges unanimously held that the terms “man”, “woman” and “sex” in the Equality Act 2010 refer to biological sex.
The judges stated that the law has not been changed – it has been clarified.
This examination of the language of the EA 2010, its context and purpose, demonstrate that the words “sex”, “woman” and “man” in sections 11 and 212(1) mean (and were always intended to mean) biological sex, biological woman and biological man.
Supreme Court Judgment
This means that health care providers who have been operating on an interpretation of “sex” based on possession of a Gender Recognition Certificate or on the basis of self-identification, have always been legally in the wrong.
This misinterpretation of discrimination law has had a direct impact on patients and staff, in particular women.
How does it affect the NHS and health care providers?
Same sex accommodation
The NHS Constitution and NHS England guidance stipulate that patients should not normally have to share sleeping accommodation or toilet/bathroom facilities with members of the opposite sex.
However, this is in tension with other NHS guidance which says, “Trans people should be accommodated according to their presentation: the way they dress, and the name and pronouns they currently use.” This guidance is known as ‘Annex B’ and would mean a person of the male sex who identifies as female would be accommodated in a female ward.
Following the Supreme Court ruling it is incumbent on NHS and other health care providers to act without delay to review their policies on same sex accommodation and institute the necessary changes in order to comply with the law.
In order to fulfil their Public Sector Equality Duty, Trusts will have to find ways of accommodating patients who identify as trans so as to protect their rights too, but the Equality Act makes it clear that if a same sex exception is applied to a service – like hospital accommodation – that has to mean biological sex.
The Government has committed to publishing guidance about placing transgender people on hospital wards this summer. The NHS is currently reviewing its Delivering same-sex accommodation guidance to reflect the Supreme Court ruling.
Intimate care from a same sex clinician
The Supreme Court judgment has implications for patients requesting a practitioner of a particular sex, especially for intimate care when many patients, in particular women, feel vulnerable. Under the NHS Constitution health care providers have the obligation to provide same sex care, on request, where reasonably possible.
Changes have already been proposed to the NHS Constitution that this should mean biological sex and the Supreme Court judgment adds further clarity that that should be the case.
While it may not always be practical or appropriate for a patient to expect a health care provider of a particular sex (for example in an emergency), patients have the right to refuse care if they do not want a person of a particular sex to attend them. Hospital administrators and other health care providers will have to create policies and procedures to ensure that patients are able to exercise this right.
Information for patients
The Public Sector Equality Duty places a responsibility on service providers to provide accurate information to service users. Patients, especially women, now have a clear right to know if services will actually be provided on a separate sex basis.
Same sex facilities for staff
The Workplace (Health, Safety and Welfare) Regulations 1992, state that there should be separate facilities for men and women where necessary for reasons of propriety.
The Supreme Court ruling has therefore reinforced the existing clear requirement for staff to be provided with same-sex facilities such as changing rooms.
Despite this, there are two ongoing legal cases resulting from the failure of NHS Trusts to protect their staff’s rights. Nurses in Darlington are taking legal action against their Trust for sex discrimination and harassment because of being obliged to share changing facilities with a biological male, and a nurse in Fife, Sandie Peggie, is taking her employer to an Industrial Tribunal after being disciplined for complaining about a biological male in her changing room.
While the outcomes of these cases are awaited it seems there is political will on the part of Government to resolve the issue, indicated by Wes Streeting’s intervention in relation to the Darlington nurses, for whom he had already expressed support.
“I support the nurses and I’m horrified that they’ve had to resort to legal action. We’ve got to find a better way through this that treats trans people with respect and respects women’s safe spaces.”
Secretary of State for Health, Wes Streeting
The Darlington nurses were invited to contribute to the development of new guidance on this matter, which should now reflect the clear judgment of the Supreme Court.
NHS Fife have said they are “carefully considering” the implications of the Supreme Court judgment for the Sandie Peggie case, which will resume hearings in July.
Balancing the rights and needs of trans staff with the rights and needs of female staff may mean options for third spaces such as additional gender-neutral changing rooms.
Accurate data on sex
The clarification of the meaning of “sex” in the Equality Act reinforces the need to ensure that data collected for health care purposes accurately refers to biological sex. This was the conclusion of the government commissioned Sullivan Review .
Accurate data on sex is important for many reasons: for employers to monitor equality and discrimination issues such as ensuring equal pay; for health care planning and provision of health services; for research to improve our understanding of how a person’s sex affects their health; and for medical care.
Medical records should accurately record the patient’s biological sex. Currently this is not the case as the recent report Incoherent and Unsafe explained. Knowledge of a patient’s sex is vital for safe effective medical care including making diagnoses, interpreting certain test results and ensuring the right people are invited for health screening. Accuracy about sex will benefit trans people by protecting them from risks of misdiagnosis, misinterpretation of test results or not being called for screening tests.
This does not prevent medical records also having fields for gender, form of address, pronouns etc. And clearly it is good policy and practice to use a patient’s chosen name and form of address.
Nevertheless, staff should be able to talk in medically accurate terms and refer to the sex of the patient when necessary, without fear of being criticised or disciplined for discrimination or harassment.
Safeguarding child patients
In April 2024 the Cass Review on gender services for children and young people highlighted the potential safeguarding issues for gender-variant children and adolescents who had been issued a new NHS number and medical records, potentially obliterating important safeguarding history and alerts.
Some NHS Trust policies currently state that “gender-variant children and young people should be afforded the same respect for their self-defined gender as adults”.
Almost a year after the Cass Review was published, the Sullivan Review again highlighted the child safeguarding risks of changing medical records and the Government stepped in to ban the practice in under 18s.
That it took Government action to protect young people from a risk that had been highlighted in the Cass Review a year earlier suggests that NHS Trusts and other health care providers were not paying sufficient attention to the safeguarding implications of treating gender-variant children according to their self defined gender and not their sex. There are other risks such as accommodating adolescents on wards designated for the opposite sex.
It is to be hoped that the Supreme Court judgment will lead to a review of safeguarding of gender-variant children and adolescents by NHS and other health care providers.
What does the ruling mean for trans people?
This interpretation of the Equality Act does not remove protection from trans people, with or without a Gender Recognition Certificate. Trans people are still protected from discrimination on the ground of gender reassignment. They are also able to invoke the provisions on direct discrimination and harassment, and indirect discrimination on the basis of sex, as explained in this useful summary of the judgment.
NHS trusts and other private and public health care providers have a statutory obligation to balance the rights of everyone with a relevant protected characteristic. This is called the Public Sector Equality Duty. It ensures that organisations consider how their functions will affect people with different protected characteristics.
That means that NHS Trusts and other health care providers will have to find ways to balance the rights of women to single sex provision with those of trans people who have the protected characteristic of gender reassignment. This was always the law, and always what they should have done.
In practice it is likely to mean that Trusts and other providers should provide gender-neutral “third spaces” to accommodate trans people, while also ensuring single sex provision when it is a “proportionate means to a legitimate aim” of protecting the safety, privacy and dignity of patients based on their sex.
What happens next?
NHS Trusts and other health care providers and organisations should be reviewing their policies now in response to the Supreme Court judgment, both for patients and staff, as well as for wider public health and data purposes.
Given the confusion about how to interpret the Equality Act which led NHS Trusts and other providers to have the wrong policies, it is important that they now receive up-to-date guidance on how to implement the provisions in the Equality Act.
The Equality and Human Rights Commission is consulting on guidance for organisations with duties under the Equality Act, such as NHS Trusts, until the end of June. You can contribute to that consultation here:
Sex Matters has produced a useful guide to responding to the consultation.
The Government also has to update its policies, swiftly rescind Annex B, and ensure that the word “sex” in the NHS Constitution and in guidance for hospitals on same sex accommodation refers to biological sex. In parallel we are calling on them to act on the Sullivan Review recommendations on accurate recording of sex in medical records and data collection.