Summary
The new NHS guidance does not require a blanket ban on trans people in single-sex spaces. It states that trans people should be placed in wards aligned with their sex registered at birth, unless this poses a risk to the patient’s:
- Clinical needs
- Dignity
- Safety
- Privacy
This means that accommodation decisions should be decided on a case-by-case basis. Staff will also be required to make this decision “in partnership” with the patient where possible.
We encourage patients to let staff know if they feel that their accommodation poses a risk to their safety, dignity, or privacy. However, it shouldn’t be a patient’s job to advocate for themselves at a time when they are vulnerable and need support.
Our next step will be to make resources for both patients and professionals to help them navigate this new guidance. We also call on the cancer sector to do more to protect trans patients: develop clear internal guidelines, conduct Equality Impact Assessments with input from trans people, and advocate for patients to be accommodated where they feel most comfortable.
What does the new guidance say?
Over the past six months, we have been undertaking an extensive expert review of the recently published EHRC Code of Practice and what this means for health and cancer care. It is our view that blanket bans on trans people accessing single-sex services and accommodation in the NHS would be unworkable, ineffective, in opposition to the principles of the Equality Act. Today, the NHS has affirmed that everybody has the right to safety, privacy, and dignity in NHS spaces, including in single-sex spaces like accommodation.
In line with the Supreme Court ruling, the new guidance from the NHS states that trans people should be placed in a ward aligned with their sex registered at birth. However, it stresses that if this is clinically inappropriate, or poses a risk to the patient’s privacy, dignity and safety, then alternative arrangements should be found.
It goes on to add that “there may be occasions when both meeting clinical needs and delivering same-sex accommodation is not possible. In these instances, ensuring that clinical needs are met is the priority.” It also makes clear that decisions about accommodating trans people should be “person-centred”, and made “in partnership with the patient”.
Our view
We believe this guidance will mean trans people are accommodated on a case-by-case basis, guided by these core questions:
- What are the patient’s clinical needs?
- What is safe and fair?
- How can the patient’s privacy and dignity be respected?
Our interpretation of the new guidance is that trans people should not be forced to stay in a ward of their sex registered at birth against their will; this is likely to undermine the patient’s dignity, privacy, and safety, and therefore their rights under the Equality Act. We are glad that the NHS appears to recognise this and makes a clear call for alternative arrangements to be provided.
However, in the months we’ve spent waiting for this guidance, the damage has already been done for many trans people. A report from TransActual found that 64% of trans people have avoided seeking medical attention even when unwell. Since the Supreme Court ruling, OUTpatients has spoken to several community members who have said they are now avoiding hospital care for fear of being placed on the ward of their sex registered at birth. Even for those who do go to hospital, it could mean having to advocate for ourselves at a time where we are vulnerable and need support.
What happens now?
Ultimately, this guidance has upheld a core principle of the Equality Act; trans people are only to be excluded where it is “a proportionate means of meeting a legitimate aim”, and the safety, dignity, privacy, and clinical needs of trans patients cannot be abandoned. At its core, this means that clinical outcomes and patient-centred care should still come first.
Going forward, NHS Managers need to develop robust processes for deciding how to accommodate trans and gender non-conforming people. These should be guided not only by Equality Impact Assessments, but in partnership with trans people and our organisations, who can provide real insight into how each decision can impact them. It is also important that frontline staff are given appropriate training to make these decisions.
As a sector, we also need to be making patients aware of their rights in hospital accommodation. Over the past two years, trans people have watched as their rights have been systematically eroded, and many are (understandably) unsure of where they now stand when accessing healthcare.
It shouldn’t have to be a patient’s job to advocate for themselves in times of need. But the unfortunate fact is that this is now the reality for many trans patients. That is why we are calling on the cancer sector to do more to support trans people’s access to critical care; provide training for staff, listen to your trans patients, and monitor the impact of your processes on trans people.
Our call to patients is to let hospital staff know if your accommodation could undermine your safety, dignity, or privacy in any way. They should work with you to provide alternative arrangements. If you experience any problems accessing appropriate accommodation or have avoided seeking healthcare for fear of discrimination and would like to share your story, then please get in contact with us.
As a next step, OUTpatients will be making resources for both patients and professionals to help them navigate this new guidance, and maintain rights of all patients in the NHS.