The Department of Health and Social Care is currently consulting on proposed changes to the NHS Constitution (“the Constitution”) as part of a 10 year review process set out in the Health Act 2009. The constitution was last updated in 2015. The consultation will run for 8 weeks and closes on 25 June 2024.
The Constitution sets out the principles, values, rights and pledges that underpin the NHS, and aims to empower patients, staff and the public to know and exercise their rights to drive improvements in quality, efficiency and responsiveness throughout the NHS.
The proposed updated Constitution reinforces the NHS’s commitment to providing single-sex wards, setting out that placing trans patients in single-room accommodation is permissible under the Equality Act 2010 when it is a proportionate means of achieving a legitimate aim, such as respecting another patient’s wish to be in a single-sex ward.
This reflects emphasis from the government that “biological sex matters” and Health and Social Care Secretary, Victoria Atkins, has said “we want to make it abundantly clear that if a patient wants same-sex care they should have access to it wherever reasonably possible.”
The provision in the updated Constitution is said to highlight the importance of balancing the rights and needs of all patients to make a healthcare system that is faster, simpler and fairer for all. This includes accommodating requests for same-sex intimate care and respecting single-sex wards.
However, the proposed approach by the government is not without criticism; the executive of the NHS Confederation has voiced concerns that the NHS will be dragged into a “pre-election culture wars debate” rather than addressing other pressing issues such as wait times for care.
Without clear guidance, the proposed updates could be argued to have the potential to incite discrimination and ostracization of trans people seeking medical care. If providing separate rooms for trans people is the government’s expectation, there is additionally the question of how an already strained health service is expected to cater for this need, and concern that with strapped resources trans and non-binary patients could face limitations in their access to NHS services.
While undoubtedly an area of public discourse, from a legal perspective allowing single-sex wards (and by extension providing a trans person a single room) is permitted under the Equality Act 2010. Section 11 of the Equality Act 2010 provides that “references to people having the protected characteristic of sex are to mean being a man or a woman, and that men share this characteristic with other men, and women with other women”. In the Act ‘man’ means ‘a male of any age’ and woman means ‘a female of any age’ (section 212) and although the issue was debated in Parliament in 2023[1], the Equality Act 2010 has not been updated to define “sex” as meaning “biological sex at birth”, which some believed would bring greater clarity. A person’s legal sex is the sex recorded on their birth certificate, or Gender Recognition Certificate, although the EqA expressly provides that a person with a GRC can still be excluded from single sex services despite changing their legal sex. For the purposes of the law, a trans person who does not have a Gender Recognition Certificate retains the sex recorded on their birth certificate. However, a person does not have to have a Gender Recognition Certificate to have the protected characteristic of gender reassignment.
The Explanatory Notes to the Equality Act 2010 provide an exception to the general prohibition of sex and gender reassignment discrimination whereby communal accommodation can be restricted to single sex, with conditions and factors which must be considered[2]. Similarly, the Explanatory Notes contain an exception to the general prohibition of gender reassignment discrimination in relation to the provision of separate – and single-sex – services, stating that such treatment by a provider must be objectively justified[3]. The Equality and Human Rights Commission has produced guidance on interpreting these provisions, and notes that any approach limiting or modifying a trans person’s access to a single-sex service of the gender in which they present must be a proportionate means of achieving a legitimate aim. A legitimate aim could be the privacy and dignity of others.
Interestingly, the exceptions outlined in the legislation do not depend on whether an individual has a Gender Recognition Certificate (and are recognised by law as the gender in which they present) or not, and a margin of discretion is therefore afforded to providers to make decisions about the provision of services and accommodation to trans people depending on the context, as long as they can demonstrate a legitimate aim.
It is also true that single-sex accommodation and treatment rights, which have existed in legislation for a number of years, can and are breached where there is an urgent clinical need to admit and treat a patient. They also do not extend to areas such as critical care and A&E.
Some may therefore question why the added emphasis on single sex wards is needed in the proposed changes to the NHS Constitution, where robust policies are already in place, with established exceptions. The real issue is arguably better resourcing to enable NHS Trusts to act in accordance with existing guidance. The Covid pandemic provides an example where treatment of patients in an extremely strained environment demanded a crisis approach, whereby recording of breaches of the government’s guidance against “mixed-sex” wards was suspended between March 2020 and September 2021. Even since, NHS England data has shown that mixed-sex accommodation was reported almost 4,500 times in March 2023.[4]
The government has invited responses to the consultation from the public, clinicians and medical professionals, patients, carers and organisations representing patients, staff and health stakeholders.
With an expert team on hand, we can provide advice and assistance relating to the application of the Equality Act 2010 in this context, to ensure decisions are undertaken fairly and in accordance with key public law principles of reasonableness and lawful decision-making.
[1] MPs debate changing the legal definition of ‘sex’ – Personnel Today
[2] See Explanatory notes to the Equality Act 2010, Communal accommodation: paragraph 3
[3] See Explanatory notes, single-sex services: paragraphs 27 and 28.
[4] Breaches of single-sex hospital ward rules more than treble since pandemic | The Independent