How did NHS body get the law so badly wrong over its rules on same-sex care? | Sonia Sodha

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Patients are supposed to be at the heart of everything the NHS does. This is considered such an important principle that, a decade ago, the fledgling NHS constitution was rewritten after the mid-Staffs scandal, in which so many patients died, to make clear it should frame every aspect of NHS work.

Yet, last week, the NHS Confederation, the membership body for NHS providers, published guidance that appears to cut this ethos adrift. Its stated objectives are incredibly important: supporting trans staff by helping healthcare leaders to understand their needs and address any workplace discrimination they may face. But it also includes guidance on how to handle requests for same-sex care that gets the law badly wrong and could lead NHS trusts to unlawfully discriminate against female patients.

There are many reasons why some women may prefer female staff, particularly with intimate care such as smear tests. They may be victims of sexual assault and find male contact traumatic. They may have religious beliefs that prohibit it. They may simply have a preference relating to privacy and dignity. And Henrietta Freeman, who is paralysed from the chest down, has written about the importance of same-sex care for many disabled women. This is recognised in law, and in guidance from the Care Quality Commission that says health and care providers must make every effort to respect a patient’s preferences for same-sex intimate care.

The NHS Confederation cannot override the law and is not a statutory body like the CQC. Yet its guidance directly contradicts it. It claims it would be “discriminatory” for a patient to refuse to be treated by a trans healthcare professional of the opposite sex unless “evidenced clinical harm may result”. This is legal gibberish – individuals are not directly bound by equalities law in their conduct as patients – and the law does not say providers should only accept requests if there would otherwise be clinical harm.

Its guidance wrongly claims it would probably be discriminatory for a provider to honour a request for same-sex care by excluding trans staff of the opposite sex if the request has “no clinical merit”, opines without basis that there will be “extremely few circumstances” where this request is lawful and says “patients expressing any such view should be informed of the discriminatory nature of their request [and] that such behaviour is unacceptable”. It does not even mention the law on consent.

Naomi Cunningham, a barrister specialising in discrimination law, says: “This guidance encourages NHS providers to unlawfully discriminate against female patients requesting same-sex care and wrongly says they don’t have the right to know the sex of staff providing intimate care.”

The Equality and Human Rights Commission is the statutory regulator of equalities law. In relation to same-sex care, a spokesperson told me: “Failure to meet a patient’s request could amount to unlawful indirect sex or religion or belief discrimination, if it could not be objectively justified.”

In regards to trans staff, protected under the characteristic of gender reassignment in the Equality Act, they said: “The Equality Act makes provision for employers to restrict particular roles to men or women, or to people without the protected characteristic of gender reassignment, where that is an occupational requirement and a proportionate way of meeting a legitimate objective.” They added: “Accommodating service users’ requests for healthcare to be provided by a man or a woman, or by a person who is not trans, affects staff members who do not meet those requirements. This could in some circumstances result in claims of unlawful discrimination.

“Service providers can minimise this risk by having clear policies in place about when such requests will be met, ensuring that staff are aware of such policies and the reasons for them, and mitigating any possible negative impact on individual staff members.”

So the law is absolutely in the right place when it comes to balancing rights: it is unlawful not to honour a request for same-sex intimate care without good reason, but NHS providers should take steps to mitigate the impacts for trans staff. How has the NHS Confederation, which told me it stands by its interpretation of the law, got it so wrong?

Like so many organisations grappling with the delicate conflict of rights between women who want to access single-sex services, and trans people who want to be treated according to their gender identity, not their sex, for all purposes, the NHS Confederation has fallen into the trap of engaging with one perspective to the exclusion of all others. Any guidance on same-sex care should have been produced based on an accurate understanding of the law and after consultation with the range of groups affected, including patients. Instead, its production was outsourced to a single campaigning charity, the LGBT Foundation, which adopts the controversial worldview that gender identity can replace sex for all purposes in society and lobbies for changes to the law on this basis. The tender even asked for “ideas for supporting NHS organisations when they face opposition from anti-trans groups and individuals”; “anti-trans” is language commonly used by gender identity campaigners to describe the perfectly legitimate perspective shared by most of the public – and NHS patients – that sex cannot be wholly replaced by gender identity in society.

It isn’t just the NHS Confederation. NHS England has itself effectively adopted a blanket policy that trans or non-binary male patients should be placed on female-only wards. This is despite the fact that it may be unlawful discrimination for a hospital not to accommodate female patients on female-only wards; the Equality Act explicitly states it is lawful for hospitals to provide single-sex wards; and there are compromises that could balance everyone’s needs, such as using private rooms.

Other institutions have got equalities law wrong on the basis of incorrect advice from campaigning charities such as Stonewall: for example, an independent review found Essex University discriminated against women with employment policies that misstated the law “as Stonewall would prefer it to be”.

There remain some ambiguities in equalities law relating to this conflict: whether “sex” in the Equality Act refers to biological sex or whether someone with a gender recognition certificate must be treated as the opposite sex for discrimination purposes. A proposal to clarify that sex means biological sex – with all trans people robustly protected against discrimination under the protected characteristic of gender reassignment – will be debated in parliament tomorrow after a petition garnered more than 100,000 signatures. That major organisations are still getting the law seriously wrong should prompt MPs to support this.

“The NHS belongs to the people” is the first line of the NHS constitution, not just to people who believe gender identity should replace sex in society. It is unlawful to deny a female patient same-sex care on the basis that such a request is somehow bigoted or transphobic and to suggest otherwise is to prioritise the validation of staff identities over and above legitimate patient preferences relating to their privacy, dignity and safety. The NHS Confederation should retract its guidance and start again.

Sonia Sodha is an Observer columnist

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