Transgender patients should be placed on wards according to their birth sex rather than their gender identity, updated NHS England guidance has confirmed.
This means hospitals can lawfully exclude patients who are trans women from female wards, and those who are trans men from male wards.
Under previous NHS guidance, trans patients could be accommodated on single-sex wards based on the gender with which they identified.
The publication of the updated guidance on Thursday comes just over two months after wider guidance on single-sex spaces written by Britain’s rights watchdog officially came into force, and 18 months since the Supreme Court ruling on biological sex.
The Equality and Human Rights Commission (EHRC) code had already confirmed a service must be used on the basis of biological sex for it to be classed as single-sex under the Equality Act.
It said: “In separate or single-sex services, a trans man will be excluded from the men-only service because his sex is female, and a trans woman will be excluded from the women-only service because her sex is male.”
It covered a range of scenarios including single-sex hospital wards, which it said can lawfully exclude trans patients.
The new NHS England document, which says all patients “should be treated with respect, dignity, compassion and care”, adds that “trans people and others with the protected characteristic of gender reassignment should be accommodated in line with their biological sex”.
It says hospitals “should identify alternative arrangements” for trans patients in cases “where it would not be clinically appropriate” to care for them on a ward of their biological sex.
Bethany Hutchison welcomed the ‘clear and necessary guidance from NHS England’ (Iain Masterton/PA)
PA Wire
It adds that “where clinical needs and same-sex accommodation requirements cannot both be met, clinical needs are the priority”.
Such occurrences, where a trans patient was placed on a ward of their gender identity, are described in the guidance as likely to be “rare” and reasons should be “clearly recorded and reported nationally as breaches of this guidance”.
The new guidance applies to acute, mental health and community NHS trusts as well as NHS-funded patients in private settings but not A&E departments, urgent treatment centres or paediatrics.
Updated guidance for NHS England staff in hospitals and GP surgeries has also been published.
It says single-sex facilities such as changing rooms and toilets should be used according to biological sex.
In trusts with mainly single-sex facilities, “organisations should consider whether suitable and accessible alternatives, such as single‑occupancy or mixed-sex facilities with individual lockable rooms can be provided to allow access to facilities in a way that respects privacy and dignity and supports inclusion of all staff”.
Trusts have been asked to carry out audits of their current provision, including “whether hand-washing facilities are communal or not and whether options are provided to ensure privacy within single-sex facilities”, with the findings expected to “inform local people policies, to identify any changes needed to existing facilities, and support planning for any required capital investment”.
Darlington nurse Bethany Hutchison, who led and won a claim against County Durham and Darlington NHS Foundation Trust after her trans colleague Rose Henderson was allowed to use women’s changing facilities, welcomed the “clear and necessary guidance from NHS England”.
That employment tribunal in January found that sharing single-sex changing rooms with a trans colleague had created “a hostile, intimidating, humiliating and degrading environment” for nurses.
Ms Hutchison, president of the Darlington Nursing Union, said of the new guidance: “The test now is whether NHS trusts will actually follow it.”
She urged NHS England, regulators and trust leaders to “ensure that every NHS policy is brought swiftly and lawfully into line with this guidance, the EHRC Code and the Supreme Court’s ruling”, adding that “there must be clear oversight, meaningful accountability and consequences for trusts that refuse to comply”.
Earlier this year an NHS trust said it was reviewing its policies after a doctor began legal action over what she described as an “egregious safeguarding failure” when a biologically male patient was placed on a women’s ward and is said to have “exposed himself”.
The trust later said it had “no record of this incident” but the doctor is understood to be proceeding with her legal claim, saying she was “met with delay” and “resistance” when she raised the issue of single-sex spaces with her employer.
In a joint statement, campaign groups TransActual and Trans+ Solidarity Alliance said: “This NHS guidance emphasises clinical judgment as the priority over blanket exclusion, but leaves individual healthcare professionals unclear on how to safely look after trans patients.
“Forcing trans people into spaces for our sex assigned at birth will never be the most clinically appropriate decision, and would push trans people away from accessing care.
“Doctors and nurses need to be able to prioritise looking after the person in front of them, not juggling scarce side rooms and writing breach reports in order to keep trans patients safe.
“This guidance will not survive contact with reality in resource-strapped hospitals and will create unworkable operational challenges. The Government failing to get a grip of this legal mess is sadly putting politics over patient care.”
Maya Forstater, chief executive of sex-based rights charity Sex Matters, welcomed the policies as representing “a momentous shift back to reality” but voiced concerns as to how they will be implemented.
She said: “NHS patient data is a mess, with potentially thousands of trans-identifying people recorded as the opposite sex.”
Opposition parties criticised the time lag between the Supreme Court ruling and the publication of the guidance.
Conservative shadow health secretary Damian Hinds said: “The Supreme Court ruling was nearly two years ago. The delay in implementing the law raises serious questions on compliance and ministers must act decisively to provide clarity for patients and staff.
“Labour’s failure to act swiftly has left NHS staff and patients facing uncertainty over single-sex spaces. Female NHS staff and patients deserve protection and the law must be enforced.”
Reform UK leader Nigel Farage said on X: “The NHS has finally banned men from accessing women’s spaces. Good.
“But why is this happening 18 months after the Supreme Court’s ruling?”