At OUTpatients, we are deeply concerned by the proposed changes to the EHRC Code of Practice made in response to the Supreme Court’s judgment in For Women Scotland v Scottish Ministers. Rather than providing clarity, we find these changes raise numerous questions regarding the continued provision of vital cancer services to those who do not fit the narrow view of sex and gender diversity described within the guidance. It is our opinion that the guidance is therefore not fit for purpose, potentially putting service providers at risk of litigation and jeopardising patient safety.
Healthcare is a human right for all patients, including those who are transgender. The NHS Constitution clearly supports the protections enshrined within the Equality Act (2010). Yet, we believe that the proposed changes to the EHRC Code of Practice may infringe upon transgender people’s access to cancer services and thus this protection. If the updated guidance were to pass as it is currently written, we feel that it would severely limit the ability of transgender people to access essential services, including bathrooms, cancer treatment and support spaces, and likely compromise their right to safety, dignity, and privacy.
Table of Contents
“You have the right not to be unlawfully discriminated against in the provision of NHS services including on grounds of gender, race, disability, age, sexual orientation, religion, belief, gender reassignment, pregnancy and maternity or marital or civil partnership status.”
Understanding sex
Both the Supreme Court judgment and EHRC Code of Practice incorrectly assume that biological sex is binary. We believe that this limited understanding of the variation of sex characteristics is out of alignment with expert opinion of biologists, and creates further ambiguity about the protections from discrimination available to intersex people. These negative impacts have wide ranging implications, as already seen in America and summarised by the Williams Institute School of Law at UCLA.
The EHRC has not considered how this guidance will affect intersex persons. In a recent session with the Women and Equalities Committee, the EHRC Chair shared that they did not review the impact of the Supreme Court ruling or their Code of Practice on intersex people as they are not covered by the Gender Reassignment protected characteristic. The Chair’s response raises concern about her understanding of variations of sex characteristics, and her appreciation for how the Sex protected characteristic may be of relevance. The Good Law Project has plans to bring this issue before the courts.
The Code of Practice appears to give the impression that one’s sex assigned at birth is a person’s legal sex at all times. It is important for the guidance to clarify that the Supreme Court judgment only applies to the Equality Act. In the wider legal landscape, there remain contexts in which a person’s legal sex can be different from their sex recorded at birth, and the guidance should provide greater clarity as to when this would be the case.
We know that both sex and gender identity impact cancer risk and treatment. While sex is important for considerations of disease and genetic or biological risk, gender impacts behaviours, systemic barriers to health care, and social determinants of health. For instance, transgender people in England are more likely to be current smokers than their cisgender peers. Smoking is associated with lung cancer and HPV-related cancers, including cervical cancer. To quote our 2023 British Journal of General Practice letter No, we mean sex AND gender: “To ignore gender or see it as synonymous with sex is to arrive at biological determinism that does not accurately describe public health or patient experience.”
Summary
We foresee conflicts arising between the binary definition of biological sex proposed by the court, and the scientific definition that is more accurate and relevant to medical settings. We echo the view of expert biologists in stating that the court definition is an “unsafe basis for policy”.
Single-sex facilities
We believe that the proposed update predominantly focuses on the exclusion of transgender people. As it is the duty of the EHRC to protect and promote the rights of all nine protected characteristics, we would expect an updated Code of Practice to clearly describe ways to support the continued inclusion of transgender people wherever possible.
Exclusion should be an option, not an obligation. The hypothetical cases presented within the Code of Practice often appear to present the exclusion of transgender people as a mandatory obligation of service providers. In some cases this goes as far as to suggest that not doing so will automatically leave them open to legal challenge. This viewpoint was upheld by the EHRC Chair in the recent Womens and Equalities Select Committee session when she said that transgender women would not be allowed to take part in a women’s walking group. This view appears to derive from the EHRC’s interpretation of the Supreme Court ruling, which sets out that services can only be ‘biologically’ male, female, or mixed. This does not reflect the reality of services within the UK, as pointed out by Rachel Taylor MP at the Select Committee. In addition, former Supreme Court President Brenda Hale finds that the ruling “has been misinterpreted”, and is reported as saying that “there’s nothing in that judgment that says that you can’t have gender neutral loos.”
The EHRC’s interim update has caused confusion for employers. This brief update was originally understood to be their initial response to the Supreme Court ruling and an indication of the upcoming Code of Practice. It also contained statements such as “this update is intended to highlight the main consequences of the judgment. Employers and other duty-bearers must follow the law.” This led to some immediate reactions from employers who feared legal ramifications of inclusion, such as Barclays. The EHRC has since attempted to reframe this update as “some observations – brief and high level” that sat in their website’s news section as opposed to their Guidance and Advice section and “remains subject to change”. In a response to the Good Law Project, EHRC lawyers appear to try and place even further distance between themselves and the original wording of this update.
We are concerned by the EHRC’s suggestion that transgender people will, in most cases, require separate services or spaces. We believe that this may breach the “proportionate means” requirement of the Equality Act as there is a profound lack of infrastructure or estate available to support this suggestion. We also note, as per Rachel Taylor MP’s example, the EHRC assumes transgender people to be excluded by any service that describes itself as a men’s or women’s group. We firmly refute the EHRC’s position that it is the responsibility of transgender people themselves to advocate for inclusion in “third spaces”, as we believe this is their duty as the equalities watchdog.
The Government has made previous efforts to ban gender neutral toilets. In 2023, the Sunak Government made a call for evidence on the provision of mixed-gender facilities. Despite a consultation on the matter demonstrating an overwhelming support for mixed-gender facilities (83%) compared to single-sex facilities (12%), the Government set out to introduce a new law limiting the creation of new mixed-gender facilities. The current Government has not revisited this issue. This does not give us a positive indication that the Government holds support for the “third spaces” that the EHRC Chair proposes.
The ‘sex vs gender debate’ is not a primary concern for the public. The same consultation on single-sex toilets found that only 5% of respondents cited the debate on sex and gender as an issue for them. Compare this to the majority of respondents who cited disability (71%) and medical conditions (69%) as leading concerns, it is clear to see how the conversation around toilets has become distorted. These findings are of particular interest to us as a cancer charity as we believe that toilets should remain accessible and should have a universal offer of sanitary bins for bio-waste disposal. Fecal and urinary incontinence are well known treatment side effects, demonstrated by the Macmillan toilet card initiative and partnership between Prostate Cancer UK and PHS. Our concern is that by limiting access to toilets for people with these needs, the EHRC may in turn limit their social freedom if they are not able to leave the house with the confidence of using the toilet.
The Code of Practice will place pressure on the availability of accessible toilets. If a building’s only gender neutral toilet is a disabled toilet, barring transgender people from the facilities that align with their gender will force them to use the accessible toilet and negatively impact its availability to disabled users. There is also a wider argument that to be transgender is not a disability nor a disorder. In our view, the Code of Practice does not adequately address this issue of increased demand on an already limited resource in a way that is required of it as the regulator.
Transgender people using the toilet are not a threat. Research from the Williams Institute School of Law at UCLA finds no evidence that allowing transgender people to access toilets aligning with their gender identity risks the safety of cisgender people. Conversely, they found that transgender people are at risk of harassment if they are forced to use the toilet of their sex registered at birth, and may even be denied entry if they try to do so, i.e. if they were to comply with the EHRC guidance.
Summary
The Code of Practice appears to mandate the exclusion of transgender people, presenting it as a legal requirement rather than an option to be used only when proportionate and necessary. This has already caused confusion among employers, lacks practical infrastructure support, and risks reducing access to essential services for both transgender and disabled people.
Cancer screening
Cancer screening saves lives. Transgender people face multiple systemic barriers to invitations and a lack of community-specific information to make an informed choice about screening. Transgender inclusion is a consistently cited principle within NHS goals for early diagnosis, including the Cervical Cancer Elimination Plan and Core20PLUS5. The NHS national cervical screening teams have recently launched an opt-in solution that allows patients without a female gender marker to opt into the call and recall system if they are eligible (i.e. they have a cervix and are of screening age). These changes are welcomed by us at OUTpatients, and are the commitment we would expect from the NHS to prioritise patient safety and reduce health inequities.
We have serious concerns about the Supreme Court’s understanding of cancer screening. The Supreme Court judgment named “cervical cancer screening for women” and “prostate cancer screening for men” within a list of examples of “single or separate services for women and men as distinct groups”. Whilst we recognise that these tests can be described as sex-specific, we draw criticism to them being referred to as “separate services for women and men as distinct groups”. Not only does this overlook the transgender people accessing these life saving tests, it also fails to recognise that these appointments are conducted in a one-to-one setting between the patient and their healthcare professional, often in a GP surgery. Further, in the case of prostate screening, this is simply a blood test. Our concern follows that describing these individual and personal appointments as “separate services” for “distinct groups” may result in transgender people being excluded where “reasonable objection is taken to their presence, for example, because the gender reassignment process has given them a masculine appearance or attributes to which reasonable objection might be taken in the context of the women-only service”, as per the judgment.
Misrepresenting screening will create greater confusion. We argue that the Supreme Court’s naming of cancer screening in their judgment is inaccurate and an example of scope creep beyond the original judgment’s focus on the Equality Act (2010). Further, it is in conflict with NHS goals around the early diagnosis of cancer. We are also concerned that the previous successes and innovations that have allowed transgender people to access screening are at risk of being undervalued, and at worst undone, despite their ability to safely include transgender people within existing frameworks.
Summary
The Supreme Court and EHRC appear to misunderstand how cancer screening is delivered. We are concerned that the proposed changes to the Code of Practice are in conflict with evidence-based approaches to cancer prevention and screening, ongoing optimisation of pathways, and existing NHS targets.
Cancer care
The NHS National Cancer Patient Experience Survey has shown a rapid decline in transgender people’s scores over the past three years. Every year, the NHS reports on cancer patients’ experiences across multiple aspects of care. Although the survey only reaches around 100 transgender people each year, the data has shown a consistent and rapid drop in scores across the cancer pathway. In the same time period, cisgender scores remained consistent. It is clear from this data that transgender people are already feeling less safe, with falling scores in their ability to discuss worries or fears with hospital staff, and reduced confidence in the teams looking after them. Most concerningly, with each passing year, transgender people are reporting that they are less involved in decisions about their own treatment and care. These are fundamental pillars of appropriate cancer care, and have the potential to deteriorate even further in the wake of the Supreme Court judgement and updated EHRC Code of Practice.
There is a lack of due consideration for transgender people accessing essential services, such as inpatient stays in hospital. We recognise that the NHS Constitution describes parts of their services and estate as single-sex, and therefore understand that they may be affected by the Supreme Court judgment. However, we also recognise that the Supreme Court judgment did not have an accurate view of what constitutes a single-sex service within the NHS, which may result in wide-reaching impacts that they have not adequately considered. We know that our concern is echoed by the British Medical Association.
The NHS Same Sex Accommodation Policy (2019) already contains recommendations for the placement of transgender people on single-sex wards. This recommends that people be placed in accordance with their gender, or the provision of a separate side room where deemed appropriate. Decisions where to be assessed on a case by case basis. This approach is in line with the EHRC’s 2018 guidance for healthcare and 2019 guidance for businesses.
The suggestion that transgender people should only be accommodated in side rooms is unfeasible. As anyone in healthcare knows, available side rooms are a rare commodity. If their use was mandated for all transgender patients it would largely be unenforceable. It is necessary to consider the broad variety of people who require side rooms and their availability across the NHS. As per NHS Estates documents, increased floor area, capital cost, management, and staffing issues also need to be considered. If a redrafted single-sex accommodation policy aligns with the EHRC’s Code of Practice, we feel that it could leave transgender people without reliable accommodation options, putting their clinical outcomes at risk.
“Let us take the example of Joelle, a trans woman who died of an eminently treatable cancer after waiting for eight days on a general ward, because clinicians could not agree whether she should be placed on a men’s ward or a women’s ward. The delay in treatment cost her her life.”
Placing transgender people in “third spaces” may result in speculation about their gender identity. Every person has a right to privacy. For transgender people with a Gender Recognition Certificate, this right is protected by law. The Gender Recognition Act clearly states that it may be a criminal offence for a person working in an official capacity to reveal a person’s transgender identity without their consent. Drawing attention to transgender people by removing them from a single-sex ward places their privacy at risk. The Code of Practice does not provide guidance on how to navigate this potential conflict or the legal challenge it may invite.
Summary
Transgender cancer patients are experiencing a sharp decline in their cancer care. They report reduced confidence, safety, and involvement in treatment decisions. The EHRC’s updated Code of Practice risks worsening these experiences and has the potential to negatively affect clinical outcomes and patient safety.
Patient records
Anti-trans campaigners are suggesting that the Supreme Court decision should affect patient records. We feel that this falls beyond the scope of the original ruling. Such groups have been working for a number of years to promote the idea that only sex should be recorded on medical records. These actions include supporting the recently tabled ‘New Clause 21’ of the Data Bill which has been described as a “gross violation of privacy rights by creating a mass outing of trans people”. The Government did not support this amendment and it did not pass.
“It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word “woman” other than when it is used in the provisions of the EA 2010.”
OUTpatients’ position is that both sex and gender identity should be recorded where possible. Unfortunately, in the majority of NHS systems only one field is available. In these cases, the NHS allows for a transgender person to update their sex marker in line with their gender identity for purposes of privacy and dignity. A duty to disclose one’s sex registered at birth lies with the patient for them to manage with individual clinicians and pathways as they use the NHS.
People deserve to be remembered as they lived. It is the Chief Coroner’s view that there is no requirement for the sex recorded at death to be the same as the deceased’s sex registered at birth. Therefore, a person’s gender identity should be respected even in death. The Chief Coroner also adds that knowing a person’s previous name or gender is rarely relevant and inquiring about this could breach Article 8 of the European Convention on Human Rights (ECHR).
Article 8 of the European Convention on Human Rights protects the right to respect for private and family life, home, and correspondence. It means the state cannot interfere with these rights unless it’s lawful, necessary in a democratic society, and for reasons like national security or public safety. The EHRC Chair has stated that she does not feel that Article 8 applies in reference to the Supreme Court judgement. We are surprised that she is taking this position as the privacy of cisgender women is a key factor consistently throughout the updated Code of Practice. Without giving consideration for both groups’ rights to privacy, the Code of Practice is at risk of bias. Concern for Article 8 should be maintained when considering transgender people’s rights and social freedoms, especially as it was this right to privacy that allowed for the creation of the Gender Recognition Act in response to Goodwin vs. United Kingdom.
Summary
The Supreme Court judgment only applies to the interpretation of the word ‘woman’ within the Equality Act, 2010. Any attempts to extend this ruling into patient data management is unwarranted and poses a significant threat to transgender patients’ privacy.
The 'common sense' argument
To suggest the clinical care of transgender people is ‘common sense’ is reductive and potentially dangerous. Transgender health is a highly specialised and rapidly developing field of practice. At OUTpatients, we believe that experts in the field should be consulted when new policies are drafted that may affect a transgender person’s clinical care. Likewise, we expect that transgender people themselves are also consulted. We have witnessed the Supreme Court, the EHRC, and subsequent news cycles overlook the complexities of delivering gold-standard care to this community and have grave concerns about the implications for patient safety.
Gender affirming care can affect how to manage cancer care. Gender affirming care is in itself life-saving, and supporting its continued use in transgender people with cancer is a complex but highly-valuable and patient-centred consideration. Gender affirming care, including hormone therapy and surgery, can modulate the individual’s risk profile for certain cancers, affect diagnostic procedures and interpretations, and be relevant in treatment decisions.
Patients tell us that care that ignores their gender leads to negative experiences. Our service users and the healthcare professionals in our network regularly tell us of how a failure to understand or support our community’s identities leads to poorer perceptions of care, psychological harm, and in some cases, withdrawal from treatment. We have even supported a patient who had their decision not to pursue breast reconstruction ignored by their surgeon.
“When I had the second mastectomy I was left with extra tissue for ‘when you will want a reconstruction’ which was clearly not what I wanted.”
OUTpatients service user
Accuracy is necessary when describing cancer risk, screening, and care. As a charity, we advocate for the inclusion of words like cisgender, transgender, women, men, and non-binary people in addition to specificity regarding anatomical eligibility for NHS services. It is disappointing to see Health Secretaries politicise accurate language regarding programme or intervention eligibility by characterising it as ‘woke’ or suggesting that it erases women. This oppositional framing is unhelpful, encourages contention between groups, and misrepresents how accurate language benefits clinical practice. Characterising assumptions of people’s anatomy as “plain english” is a rhetorical device that fails to represent the diversity of the population and seeks to limit the necessary nuanced, informed, and expert discussion on this topic.
Summary
The EHRC’s Code of Practice fails to take into account the complexities of healthcare. We believe that the over-simplification of clinical care and management invites public debate that is inaccurate and unhelpful, negatively affecting public opinion and national policy.
Impact on healthcare professionals
It is well established that an inclusive approach is the correct approach. Any attempt to move away from this position is in direct contravention of multiple professional standards. The Nursing and Midwifery Council requires that professionals “treat people with kindness, respect and compassion” including “respect[ing] and uphold[ing] people’s human rights”. It requires people to “act as an advocate for the vulnerable, challenging poor practice and discriminatory attitudes and behaviour relating to their care”. The General Medical Council states that “You must treat patients fairly. You must not discriminate against them or allow your personal views to affect your relationship with them, or the treatment you provide or arrange”, and goes as far to state “You must not refuse or delay treatment because you believe that a patient’s actions or choices contributed to their condition.” The British Medical Association describes itself as “committed to creating a culture that is inclusive of all members and staff” and “extend[s] solidarity to each other and other groups”. The General Pharmaceutical Council requires that its professionals “take responsibility for ensuring that person-centred care is not compromised because of personal values and beliefs”. This is echoed by the Health and Care Professions Council who also require that “your personal values, biases and beliefs do not lead you to discriminate against service users, carers or colleagues.”
“Creating environments where all staff feel safe, included and able to thrive, enables better patient experience and outcomes for all communities.”
In 2022, almost half of transgender doctors said they had directly experienced transphobia at work within the past two years. Research by the BMA tells us that homophobia and transphobia are still a significant issue within the NHS as a workplace. We are concerned that the proposed changes have the potential to increase levels of LGBTIQ+ discrimination within the NHS for both patients and professionals. With only 14% of NHS LGBTQ+ leaders feeling like their workplace handled these issues appropriately, this is a pressing matter for the 1 in 20 NHS workforce who are LGBTIQ+.
Summary
The EHRC’s proposed updates to the Code of Practice may make it harder for healthcare staff to meet the professional standards of workplace inclusion and person-centred care.
Potential for bias
There is a stark difference in the Code of Practice when describing the rights of cisgender and transgender people. We believe that the Code of Practice consistently speaks about the safety, privacy, and dignity of women and/or men, but rarely uses these same terms in relation to transgender people. We also believe that the hypothetical cases presented assert that women could bring claims of harassment and discrimination due to the inclusion of transgender people, but do not confer the same care or regard to transgender people regarding their own legal rights and protections in the event of discrimination or exclusion.
The Code of Practice lacks clear guidance on how to continue delivering a transgender inclusive service. We are concerned that the current framing of the Code of Practice may lead services to believe that they are obligated to exclude transgender people. We would expect the EHRC to maintain impartiality in the promotion of all of the nine protected characteristics and recognise that these are factors that are intersectional, rather than isolated. A siloed and oppositional description of human rights fails to represent the real world and thus leaves many of the proposed case studies as being unidimensional and limited in their validity.
Public comments from people leading the EHRC give us concern. When an EHRC commissioner describes our community’s reaction to these proposed changes as a “huge farce” and describes our efforts to address our concerns as ”wringing their hands”, is it apparent to us that there is bias within the EHRC. Commissioners are at the highest level of decision-making in the organisation and are responsible for the strategic oversight of the Commission. We are surprised to read that this commissioner would assert that transgender people “have been lied to over many years” and attempt to attribute this to transgender organisations. Prior to the recent strategic shift seen within the EHRC under the current Chair, the organisation had been promoting transgender rights in official outputs. As seen in 2018, the EHRC took a much more supportive view of transgender people’s rights in accessing single-sex spaces in healthcare. We share below a section from “Your rights to equality from healthcare and social care services, Equality Act 2010, Guidance for service users.” We recognise that some of the language in this excerpt is no longer preferred, but we share in full for accuracy.
Healthcare and social care for transsexual people
A healthcare or social care provider which is providing separate services or single-sex services must not exclude a transsexual person from the services appropriate to the sex in which the transsexual person presents (as opposed to the sex recorded at birth) unless they can objectively justify this.
A service provider may have a policy about providing its service to transsexual users, but this policy must still be applied on a case-by-case basis. It is necessary to balance the needs of the transsexual person for the service, and the disadvantage to them if they are refused access to it, against the needs of other users, and any disadvantage to them, if the transsexual person is allowed access. To do this may require discussion with service users (maintaining confidentiality for the transsexual service user). Care should be taken in each case to avoid a decision based on ignorance or prejudice.
Where a transsexual person is visually and for all practical purposes indistinguishable from someone of their preferred gender, they should normally be treated according to their acquired gender unless there are strong reasons not to do so.
Transsexual people should not be routinely asked to produce their Gender Recognition Certificate (if they have one) as evidence of their legal sex. If a service provider requires proof of a person’s legal sex, then their birth certificate should be sufficient confirmation.
Healthcare and social care service providers need to be aware that transsexual people may need access to services relating to their birth sex which are otherwise provided only to people of that sex. For example, a transsexual man may need access to breast screening or gynaecological services. In order to protect the privacy of all users, it is recommended that the service provider should discuss with any transsexual service users the best way to enable them to have access to the service.
Remember, if you are a transsexual person, protection from unlawful discrimination because of gender reassignment begins once you have proposed to undergo gender reassignment. To be protected, you do not have to have a Gender Reassignment Certificate, nor do you have to have changed your name by any legal process, nor do you have to be living full-time in your preferred gender.
Examples of how you should be treated include:
- Services should generally be provided to you according to the sex in which you present, unless it is objectively justifiable to treat you differently.
- In single-sex accommodation, even if physical differences would identify you as a transsexual person, sufficient privacy can usually be ensured through the use of curtains or by accommodation in a single side room adjacent to a sex-appropriate ward.
- This also applies to toilet and washing facilities (except for communal shower facilities).
- Only where the treatment is sex-specific and you would be placed in an otherwise opposite sex ward (for example, a trans man having a hysterectomy) should this approach be varied. Variations should be discussed with you and a joint decision made as to how to resolve it. The approach of the staff has to be objectively justifiable.
- If admission/triage staff are unsure of your sex, they should, where possible, ask you discreetly where you would be most comfortably accommodated. They should comply with your preference, unless it is objectively justifiable not to do so. The kind of justification which might be put forward is that they cannot comply with your preference for a legitimate reason such as the privacy of other patients. If so, it still needs to be appropriate and necessary for them to act on that reason. Also, they should offer you the option closest to your preference that is available.
- If you are unconscious or incapacitated when admitted, staff should look at how you present. There should be no investigation as to a person’s genital sex unless this is specifically necessary in order to carry out treatment.
The EHRC lacks transparency about its meetings with groups and lobbying organisations. As the government appointed equalities watchdog, we continue to be disappointed by the EHRC’s failure to provide transparency about their meetings. As a result, there is potential for an unfair balance to the meetings they take and views they favour without any external oversight. When asked about this at a Womens and Equalities Select Committee session, the Chair of the EHRC refused this call for transparency multiple times, referring to it as a “box-ticking exercise”.
Consultations of this kind are expected to run for twelve weeks. The EHRC initially allowed for two weeks. We find this astonishing given the complexity of the judgment, the lack of prior coordination or engagement with the LGBTIQ+ sector, and the potential magnitude of the impact. We know that the Chair of the Joint Committee of Human Rights also expressed this concern in a letter to the EHRC, dated 11th June 2025. We are grateful that external pressure has extended the period to six weeks but assert that this is still half that of the expected norm. We question why LGBTIQ+ people, and particularly transgender people, are not given the same due process as seen for other protected characteristics.
Despite our requests, we have not been provided with accessible formats for the consultation. We contacted the EHRC by both email and phone to request accessible formats as we know that the transgender population has a higher rate of accessibility requirements. After significant delay, we received an email asking us to make a new request to correspondence@
We would like to see an equalities impact assessment (EIA) of the proposed changes from the EHRC or the Government prior to implementation. EIAs are important tools for pre-empting discrimination against certain groups when managing change. They can also be useful in demonstrating compliance with existing legislation and standards, such as the Public Sector Equality Duty. We believe that an EIA should be published prior to any change being introduced, whether this be the proposed Code of Practice or any alternative provision stemming from the same scope of work. As per UN experts, “It is essential that the UK’s legal framework reflects the realities of people’s lives and upholds its human rights obligations.”
Summary
The EHRC’s lack of transparency allows them to operate without effective oversight and gives them the ability to prioritise one group’s voices over another. Comments made by senior staff appear oppositional to our community’s concerns and are in stark contrast to EHRC’s previous position on transgender people’s rights. We believe that there is a serious risk that the consultation may be prejudiced by these attitudes.
Concluding remarks
Transgender people remain protected under the Equality Act (2010). We expect the EHRC to uphold transgender people’s rights in equal measure as other legally protected characteristics. Instead, we find that the EHRC is taking an oppositional rather than intersectional approach to its updated Code of Practice.
We have concerns for patient safety. The limited medical and clinical knowledge of the Supreme Court and the EHRC has resulted in a ruling and Code of Practice that are in conflict with the safe and timely provision of cancer care to transgender people. It is encouraging to see that our opinion has consensus with clinical professionals and their organisations within the UK, and we urge the Supreme Court, the EHRC, MPs, and Government to take these concerns seriously.
In our view, the proposed changes to the Code of Practice make it not fit for purpose. We encourage all OUTpatients’ stakeholders to consider our concerns within their own fields of operations and influence. We remain available to those who would wish to meaningfully engage with our charitable mission in order to protect the rights of all LGBTIQ+ people accessing cancer screening and care, including those who are transgender and gender-diverse.