Individuals who have the protected characteristic of gender reassignment can still be excluded from services and facilities intended for the opposite biological sex, regardless of that person’s gender identification.
Overview
There are nine protected characteristics within the UK Equality Act of 2010 (EA2010), which includes: sex, age, sexual orientation and gender reassignment, to protect from disadvantage or unfair treatment (UK Government, 2010). The protected characteristic of ‘sex’ in EA2010 refers to a male or a female of any age. In relation to a group of people it refers to either: women and/or girls, or men and/or boys. There is no hierarchy between the nine characteristics. The rights of one group cannot trump the rights of any other. People cannot be discriminated against because of their characteristics. However, EA2010 includes single-sex exemptions that make it permissible for organisations to discriminate on the grounds of sex if it is a proportionate mean of achieving a legitimate aim. Organisations are allowed to provide services that are separate, different and/or provided to only one sex.
Part 2(1)7 of EA2010 states that: “a person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.” People who start the gender reassignment process but then decide to stop still have the protected characteristic of gender reassignment.
The separate Gender Recognition Act 2004 (GRA 2004) is a mechanism that allows people to change ‘legal sex/gender’ after a two-year process that includes a medical assessment and diagnosis of gender dysphoria. The people who undergo this process are issued with a gender recognition certificate (GRC). That law states that where a person holds a GRC they must be treated according to their acquired gender.
Individuals who have the protected characteristic of gender reassignment can still be excluded from services and facilities intended for the opposite biological sex, regardless of that person’s gender identification. Schedule 3 paragraph 28 of EA2010 single-sex exemptions allows providers of separate or single-sex services to exclude someone of the opposite sex who also has the protected characteristic of gender reassignment (including those with a GRC) if it is a proportionate means of achieving a legitimate aim. In such circumstances, discrimination can still be made on grounds of biological sex, irrespective of gender reassignment status. Therefore, single-sex provision for women could legally exclude anyone who is not biologically female. However, these single-sex exemptions appear not to be routinely invoked within the NHS.
Hospital Wards
A hospital ward prima facie meets the definition of proportionality. Patients are, by definition, vulnerable and dependent on the environment for safety, privacy and dignity (e.g. being unwell, confused, sleeping, in various states of undress, receiving intimate personal care by the bedside, etc). This is reflected in EA2010 (schedule 3, part 7, para 734) where single sex services are permitted. These exemptions allow separate male and female wards to be provided in a hospital, where the service may be used by more than one person and a woman might object to the presence of a man (or vice versa). The NHS same-sex accommodation policy aims to ensure safety, privacy and dignity for patients (NHS England and NHS Improvement, 2019). This policy does include some circumstances where mixed-sex provision is justified, particularly for clinical reasons, for example critical care or in relation to the accommodation of children (who may prefer to be with their peers). The policy also provides examples where mixed-sex accommodation should never be permitted, for example in mental health settings.
This NHS commitment to the provision of single-sex accommodation, where clinically appropriate, is confirmed in the NHS Constitution for England (Department of Health and Social Care, 2021), which writes: “that if you are admitted to hospital, you will not have to share sleeping accommodation with patients of the opposite sex, except where appropriate.”
This is re-iterated in the Care Quality Commission (CQC) Guidance for Meeting Regulations (CQC, 2015), covering section 10(2)(a) it states: “people using services should not have to share sleeping accommodation with others of the opposite sex, and should have access to segregated bathroom and toilet facilities without passing through opposite-sex areas to reach their own facilities. Where appropriate, such as in mental health units, women should have access to women-only day spaces.”
This means that single sex accommodation is expected as the norm, would be a requirement for most patients, and people should be fully involved in their care choices as part of good clinical provision.
Annex B in the NHS Same-Sex Accommodation Policy
The NHS communicates to the public they have a right to single sex provision where clinically appropriate, underlining that this provision is for patient safety, dignity and privacy. However, within their same-sex accommodation policy (NHS England and NHS Improvement, 2019), NHS England has also included “Annex B – Delivering same-sex accommodation for trans people and gender variant children”. Annex B enables transgender patients, defined within the policy as “anyone whose personal experience of gender extends beyond the typical experiences of their assigned sex at birth [sic],” to be accommodated on opposite sex wards. This definition, which is likely to include the majority of the population who do not adhere to rigid sex-based stereotypes, expands the definition of gender reassignment from that outlined in EA2010. Annex B uses the concept of an individual’s gender identity, which is not explicitly protected or classified in existing UK equalities legislation (nor are, for example, non-binary status, dress, name and pronouns). The ‘Frequently Asked Questions’ section of the NHS same-sex accommodation policy states that while transgender patients should be placed according to their own preferences, there might be some circumstances where their requests can be denied. The policy notes: “staff should do everything they can to respond to the wishes of all patients, while still protecting the dignity and legal rights of the trans person”. Notably, the NHS same-sex accommodation policy, including Annex B, fails to reference the single-sex exemptions in EA2010 that enable female only wards and should allow the exclusion of all males from female single-sex spaces (regardless of whether they possess the protected characteristic of gender reassignment). This exclusion is a means to achieve a legitimate aim: the safety, privacy and dignity of female patients.
Rights to object when single-sex accommodation is not provided
EA2010 single-sex exemptions also include rights to single-sex provision when a woman might object to the presence of a male. Therefore, women have a legal right to object when single sex wards are not provided in hospital. This is noted in the NHS same-sex accommodation policy: “In all cases staff should communicate to all patients and or their carers the situation that arises, ensuring sensitivity to all views and acting accordingly to protect the privacy and dignity of all patients.” (NHS England and NHS Improvement, 2019) Similarly, the CQC guidance around regulations 10(1) and 10(2)(a) state that: “staff must respect people’s personal preferences” and “each patient’s privacy needs and expectations should be identified, recorded, and met as far as is reasonably possible.”(CQC, 2015)
Individual NHS Trust Policies for accommodation of transgender patients
All NHS Trusts are currently required to adhere to the NHS same-sex accommodation policy, including Annex B. Some individual NHS Trusts have written their own policies independently, which differ both in content and whether they consider the rights and needs of other patients to single-sex provision alongside the wishes of the transgender patient. Some NHS Trust policies mention single-sex exemptions, but many do not. Furthermore, the definition of ‘transgender’ covered by these policies is variable and vague. In a few instances, some policies may even falsely reframe the legal right of a patient to voice their own need for single sex provision as transphobia. Many local policies have been written by a small number of individuals, often with the advice of advocacy organisations and copying incorrect advice. They have not been properly checked within Trust governance systems, for legal accuracy and an Equality Impact Assessment as a minimum.
Rights for NHS patients to request same-sex clinicians
There is currently no statutory right in the NHS for a patient to request that their care be delivered by a clinician of their own sex. Many patients, particularly women, have a marked preference for any intimate care or examination to be conducted by a female clinician. Same-sex providers might be also requested for discussing sensitive health subjects or undergoing certain procedures. People may ask for a practitioner of the same sex in different clinical situations. Patients could be influenced by such factors as previous experiences, trauma, religion and socio-cultural background, but there is no obligation on them to reveal personal details or explain their request. Most NHS Trusts and healthcare professionals will (usually) aim to provide a same-sex clinician for intimate care and examination upon patient request. However this is not always practically possible (for example if there is no suitably qualified clinician of that sex to perform the task, or the service is short staffed).
A patient’s same-sex clinician request may also become complicated to honour if NHS policies categorise practitioners who identify as other than their own sex as though they were indistinguishable from members of the opposite sex. A woman patient’s preference for a female practitioner should not be assumed to include males who identify as women (trans women). One woman found that her request for a female clinician during breast screening led to her being described as a ‘transphobe’ and used as an example of ‘transphobia’ in guidance issued to NHS staff (Hellen, 2019). Another patient became distressed and embarrassed to be seen by someone “obviously male” when she had asked for a female practitioner to perform her cervical smear test (Paterson, 2017).
Confusingly, the CQC guidelines (CQC, 2015) state that patients can request a same-sex clinician based on ‘gender.’ But ‘gender’ is not the same as sex. ‘Gender’ is sometimes taken to mean ‘gender identity’ or ‘transgender’. The CQC also explicitly states that NHS: “providers must have due regard to the protected characteristics as defined in the Equality Act 2010.” (CQC, 2015) Yet, ‘gender’ is not a protected characteristic in EA2010 (although ‘gender reassignment’ is). The CQC writes: “when providing intimate or personal care, providers must make every reasonable effort to make sure that they respect people’s preferences about who delivers their care and treatment, such as requesting staff of a specified gender”.
To ensure that patients are treated with dignity, that care choices are respected, and that policy adheres to EA2010, the focus must therefore be centred on what the patient actually means when they make a same-sex clinician request. The common understanding is that when a woman requests a same-sex clinician, she is expressing a preference for (and should be provided with) a female clinician. For Trusts not to provide a same-sex clinician – when practically possible – leaves the NHS open to the charges of discrimination (especially as these requests are more likely to be made by women). Failing to provide same-sex clinical care when this has been requested by a patient undermines consent and exposes both staff and patients to boundary breaches and violations. Patients have a right to bodily autonomy, with informed decision-making regarding how and by whom their care is delivered. In addition, consent to care is not irrevocable and can be withdrawn. Clinical actions (such as cervical screening or a digital rectal examination), would amount to sexual or criminal assault should they be attempted without the full consent of the patient. A female patient may withhold consent for intimate care to be provided by male clinicians, however they identify. Such decisions must be understood and respected by healthcare providers. A woman may determine that only female clinicians will be suitable for performing a particular healthcare procedure. In those circumstances, practitioner sex is a genuine occupational requirement (and a proportionate means of achieving a legitimate aim), thus exclusion of other clinicians based on sex (regardless of gender reassignment) is permissible under EA2010.
References:
CQC (2015) Guidance for providers on meeting the regulations, Care Quality Commission. Available at: https://www.cqc.org.uk/sites/default/files/20150324_guidance_providers_meeting_regulations_01.pdf.
Department of Health and Social Care (2021) The NHS Constitution for England. Available at: https://www.gov.uk/government/publications/the-nhs-constitution-for-england/the-nhs-constitution-for-england.
Hellen, N. (2019) ‘Patient branded transphobic after asking for female medic’, The Sunday Times, 8 December. Available at: https://www.thetimes.co.uk/article/patient-branded-transphobic-after-asking-for-female-medic-3jh3snddt
NHS England and NHS Improvement (2019) Delivering same-sex accommodation. Available at: https://www.england.nhs.uk/statistics/wp-content/uploads/sites/2/2021/05/NEW-Delivering_same_sex_accommodation_sep2019.pdf.
Paterson, S. (2017) ‘NHS is forced to apologise after a woman having a smear test specifically requested a female only to be met by a pre-op transgender medic “with stubble and a beard”’, MailOnline, 31 December. Available at: https://www.dailymail.co.uk/news/article-5224421/NHS-apologises-woman-allocated-transsexual-nurse.html.
UK Government (2010) Equality Act. Available at: https://www.legislation.gov.uk/ukpga/2010/15/contents.