The Department for Health and Social Care has published a set of proposed changes to the NHS Constitution and is running a consultation on them until 11:59pm on 25 June.
Some of the proposals are grouped under the heading ‘Sex and Gender Reassignment’ and below you can see how TransLucent has responded to these particular proposals.
You can use the link above to provide your own response to the consultation, and there is excellent guidance on how to do this over at TransActual’s website.
Intimate care proposal
“We propose adding a pledge to ‘Access to health services’ to state that: “Patients can request intimate care be provided, where reasonably possible, by someone of the same biological sex.”
Response
Disagree.
- The GMC has recently published updated guidance on providing intimate care and the use of chaperons for all their registered medical professionals1, and in November 2023, the RCN has published guidance on providing genital examination and care to women which addresses care provided by registered nurses and midwives, health care support workers, assistant practitioners, nursing associates and student nurses and midwives, and trainee nursing associates.2,
- NHS Service users have an existing right to have the right to accept or refuse treatment and not to be given any physical examination or treatment unless they have given valid consent.3, Where they request an alternative, those requests are managed professionally and with due regard to rights of employees as well as service users.
- The proposal, with its focus on the single protected characteristic of gender reassignment, encourages the view that the requests it describes are somehow more reasonable, or their targets are less worthy of protection, than say staff of a particular or perceived race, religion or sexual orientation. Such misapprehension will increase the risk of incidents in which employers become liable, under the Equality Act 2010, for the intolerance of their service users.
- In the Consultation document, intimate care is defined as
an examination of breasts, genitalia or rectum, and care tasks of an intimate nature such as helping someone use the toilet or changing continence pads.
Many NHS service users find any examination in which they have to undress be embarrassing or distressing. The GMC for example adds a wider framing to definition:
Intimate examinations are likely to include examinations of breasts, genitalia and rectum, but could also include any examination where it is necessary to touch, examine intimate parts of the patient’s body digitally, or even be close to the patient. Some patients may have particular concerns about undressing or exposing parts of their body
There is a danger that by defining intimate care in such narrow terms, service users will not feel able to use the right they already have to request an alternative health carer.
- Trans4, people have been working in various patient facing roles in the NHS since the 1940s.5, The King’s Fund has estimated that the NHS currently employs 1.5million people.6, Of respondents to the 2024 NHS Staff survey, 0.4% reported that they were transgender7,, a total of around 6,000 employees.
- We believe the proposal will contravene the provisions of the Equality Act 2010. In 1996, in the case of P v S & Cornwall County Council, the European Court of Justice held that the Sex Discrimination Act 1975 as the enabling legislation of the Equal Treatment Directive (1976) provided protection from discrimination in employment and vocational training to those who are intending to undergo, undergoing or who have undergone gender reassignment.8, Since then there has been no data, research published or other evidence published showing any significant problem arising from the NHS employing trans people.
- Further the proposal is incompatible with s9 of Gender Recognition Act 2004 which states:
Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
The Gender Recognition Act 2004 implements the European Court of Human Rights’ decision in Goodwin & I v the UK [2002], in which the court held
the very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings. … In the 21st Century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy.9,
Additionally, the Gender Recognition Act s.22 creates a criminal offence of disclosing information about a person’s sex prior to their obtaining a gender recognition certificate. Given these provisions, it is unclear how the proposed pledge could be operationalised lawfully.
- Implementation of this proposal would mean NHS employers
- making it a requirement that all staff who do or who might provide intimate care, including those with gender recognition, to regularly and repeatedly disclose their ‘biological sex as recorded at birth’, and
- making it misconduct within the workplace to fail to disclose ‘biological sex as recorded at birth’ if the job role requires providing intimate care, both of which would contravene the person’s Art 8 right to privacy under the European Convention. Or NHS Employers requiring Trans staff, including those with gender recognition, to disclose their ‘biological sex as recorded at birth’ on appointment, and
- asking administrative or managerial staff involved in placing staff having knowledge of this information and being required to make an illegal disclosure to those directly supervising patient facing duties which involve or might involve intimate care.
We would expect Trans people at all levels of the NHS, some of whom will have been living as a member of their affirmed gender (sex) for up to 40 years, will leave to take up employment in the private sector or take retirement.
Single-sex accommodation proposal
“We propose adding additional wording to the pledge on sleeping accommodation to state: “if you are admitted to hospital, you will not have to share sleeping accommodation with patients of the opposite biological sex, except where appropriate. The Equality Act 2010 allows for the provision of single-sex or separate-sex services. It also allows for transgender persons with the protected characteristic of gender reassignment to be provided a different service – for example, a single room in a hospital – if it is a proportionate means of achieving a legitimate aim.”
Response
Disagree.
- The proposal addresses a ‘problem’, which does not exist. TransLucent has conducted extensive surveys of how often NHS trusts receive complaints relating to trans women’s use of women’s wards. Most recently, we demonstrated across every relevant trust in England (FOI response >90%), for the year to September 2023, that the total number of such complaints was 1. Given that in this period NHS hospitals will have admitted ~6.75 million women, and received nearly 200,000 complaints, it is clear that NHS patients are willing and able to complain, and that the proportion of patients who have significant concerns about this aspect of their care is miniscule. (See: https://translucent.org.uk/the-non-problem-of-trans-women-and-nhs-same-sex-accommodation)
- The current satisfactory situation reflects
- the clarity of guidance provided by the RCN and NHS England, and its careful balancing of employee and service user rights in the context of the Equality Act 2010; and
- the ability of clinical professionals to address tensions that arise on a case by case basis within the current NHS Constitution and the law.
Enshrining an arbitrary example of one imagined ‘solution’ (“a single room”) within the NHS Constitution is neither helpful nor appropriate. Single rooms are not only rare, but generally reserved for those with infectious conditions or who are at the end of life. Hospitals already face problems of insufficient space and beds, with increasing numbers of service users being housed and treated in corridors. The allocation of a single room to a ‘class’ of patients; trans people, could create conflict in an already difficult situation. That conflict could result in harm to hospital staff and trans service users.
- The proposal fails to define the term ‘biological sex’ and does not address the methods by which it is to be determined. The challenges of determination are non-trivial in circumstances that include patients who are unconscious, or otherwise non-verbal, or unwilling to discuss intimate matters where their elucidation is not required for clinical purposes.
Access to health services proposal
“We propose adding a right to ‘Access to health services’ to state that: “You have the right to expect that NHS services will reflect your preferences and meet your needs, including the differing biological needs of the sexes, providing single and separate- sex services where it is a proportionate means of achieving a legitimate aim.”
Response
Disagree.
- The purpose and implications of the proposed pledge are wholly unclear. The proposed wording seems to imply that there is a potential deficit in the NHS’s response to the differing biological needs of the sexes, however that wording is completely silent as to the nature of that deficit or the circumstances in which it might arise. This is particularly odd given the significance attached by clinical services to sex-based differences in anatomy, physiology and epidemiology, as expressed through normal processes of diagnosis and intervention – and indeed the organisation of those services (e.g. obstetrics or the subspecialties within urology). A notional ‘pledge’ expressed in such opaque terms has no place in the NHS Constitution.
- The preamble to the proposal (which appears in a section titled ‘Sex and gender reassignment’) appears to focus on language, and the possibility cannot be dismissed that behind the proposal is a concern that inclusive language (such as “women and other people with ovaries”) may be an obstacle to understanding among patients. The preamble is correct in noting the importance of patients understanding whether a particular condition might apply to them. This importance is relevant to both trans and cis-gender people – and the task of devising language that provides clarity to, and respect the preferences of, all patients is one that requires compassion, expertise and where possible empirical evidence. If language is the issue, the proposed pledge and its confused rationale offer nothing useful.
Technical changes to reflect the Equality Act 2010
“We propose changing the language from ‘gender’ to ‘sex’, ‘religion, belief’ to ‘religion or belief’, and ‘marital or civil partnership status’ to ‘marriage and civil partnership status’ so that the amended text reads as follows.
Under principle 1: “It is available to all irrespective of sex, race, disability, age, sexual orientation, religion or belief, gender reassignment, pregnancy and maternity or marriage and civil partnership status.”
Under access to health services: “You have the right not to be unlawfully discriminated against in the provision of NHS services including on grounds of sex, race, disability, age, sexual orientation, religion or belief, gender reassignment, pregnancy and maternity or marriage and civil partnership status.”
Response
Agree.
Endnotes
1 GMC (2024) Intimate examinations and chaperones, (30 January) at https://www.gmc-uk.org/-/media/documents/intimate-examinations-and-chaperones_pdf-58835231.pdf acc. 17 June 2024
2Royal College of Nursing (2023) Genital Examination in Women. A resource for skills development and assessment, (November) London: Royal College of Nursing, at https://www.rcn.org.uk/-/media/Royal-College-Of-Nursing/Documents/Publications/2023/November/011-162.pdf acc. 12 June 2024<
3Department of Health & Social Security (2023) Guidance: The NHS Constitution for England, (17 August) at https://www.gov.uk/government/publications/the-nhs-constitution-for-england/the-nhs-constitution-for-england acc. 16 June 2024
4Trans is an umbrella and inclusive term used to describe people whose gender identity differs in some way from that which they were assigned at birth, including non-binary people, cross dressers and those who partially or incompletely identify with their sex assigned at birth. In this response Trans is used to refer to only those people who have started or completed a process of gender reassignment. A woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment, as does a person who has only just started out on the process of changing his or her sex and a person who has completed the process. This includes those who have commenced permanently living in their affirmed gender, but who for any reason decide not to seek medical or surgical gender reassignment.
5In the late 1940s, Michael Dillon a trans man trained as a doctor and Robert Allen, a trans man with an intersex condition, trained and worked as an NHS Radiographer. There are hundreds of trans people working in the NHS today.
6Mallorie S (2024) NHS Workforce in a Nutshell, (10 May) London: Kings Fund, at https://www.kingsfund.org.uk/insight-and-analysis/data-and-charts/nhs-workforce-nutshell acc. 17 June 2024
7McCay L (2024) The LGBTQ+ staff experience gap, (17 May) London: NHS Employers, at https://www.nhsemployers.org/articles/lgbtq-staff-experience-gap acc. 17 June 2024
8P v. S and Cornwall County Council, Case C-13/94, [1996] IRLR 347
9Goodwin v The UK [2002] ECHR (App. no. 28957/95) at para 90,
