Amendment 184ZBA

Health and Care Bill - Report (4th Day) (Continued) – in the House of Lords at 1:04 am on 16 March 2022.

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Baroness Nicholson of Winterbourne:

Moved by Baroness Nicholson of Winterbourne

184ZBA: After Clause 164, insert the following new Clause—“Same-sex accommodation(1) NHS England must, as soon as reasonably practicable and within one month of this Act being passed, revoke Annex B to its NHS guidance on “Delivering Same-Sex Accommodation” published in September 2019 (relating to same-sex accommodation for trans people and gender variant children).(2) Where NHS England issues revised guidance on the same subject, it must ensure that it takes account of the exceptions provided under paragraphs 26 to 28 of Schedule 3 to the Equality Act 2010 (which allow for separate services for the sexes and single-sex services).”

Photo of Baroness Nicholson of Winterbourne Baroness Nicholson of Winterbourne Conservative

I thank noble Lords for waiting for this very late debate and assure them that the intensity of feeling about this is not reflected by the numbers in the Chamber tonight. Indeed, we had a debate on this a couple of weeks ago. The debate on this amendment tonight still demands the withdrawal of annexe B, which gives priority to trans people over women. But despite the words “trans people”, we believe that this is a debate about the rights of women to have their dignity, privacy and safety reaffirmed and brought back into the centre because those three things have disappeared. There is a rising tide of misogyny in society today because of social media. The NHS should be behind us in supporting women because of our priority needs in health.

I suggest that trans rights, instead of having priority over women’s rights, which has happened because of annexe B, should be reconciled with but cannot trump the dignity and safety of all patients. No one patient, save for medical reasons, should be prioritised over anyone else. I think that that is one of the most fundamental failings of the 2019 annexe B, which talks quite differently from that. Some 51% of the population is being deprived and the protections that we had took at least 50 years to come through. Indeed, I suggest that the rights of women are a priori a touchstone for any civilised society. We have got it wrong. We have somehow changed course.

I suggest that Parliament sets the law and creates the common position for society on any aspect of life. Indeed, we are omnipotent and omnicompetent—not necessarily this Chamber, but the other Chamber. Yet self-ID, which is at the heart of annexe B, has deliberately been pushed through, almost surreptitiously, without debate in either Chamber. I think that that is scandalous and I am a parliamentarian of many years’ standing in different Parliaments. For me, the heart of this debate is that Parliament has been ignored and bypassed and surreptitiously something far-reaching has been brought in that affects all families, all faiths, all identities and all levels of society. In place of sex-based rights, we are giving priority rights to one special section of society.

I have every respect for that section of society. Indeed, I must have been one of earliest Members of Parliament to tackle transgenderism in my constituency. One of the most delightful people came to see me. I knew the parents well—ancient parents—and I knew the families, I knew the village and I knew the farms. This person came in because she was in a dreadful state. She had become fully altered, both physically and through drugs. Because she had been away doing that for some time—it had taken at least a year and she had gone abroad—when she came back her job had disappeared. When she reapplied, she was placed at a much lower level, which meant less status, less salary, fewer holidays and more misery, as it were, because she felt thoroughly demeaned. She was, in fact, a member of the police and it was not easy at that moment to persuade the police that this was a fully acceptable thing to have done. I think that, in that sense, I have won my colours on transgenderism. It was not easy, but I managed it. It was not easy socially for her and I helped on that as well.

None the less, we are in a different situation today, whereby my gender—my sex—has been made less dignified in hospital by a backdoor attempt. Our amendment seeks to reverse this and to include the very limited opt-outs in paragraphs 26 to 28 of Schedule 3 to the Equality Act 2010 to protect single-sex spaces in hospitals. On the filleting of the relevant schedule, which has been placed in annexe B to justify this elite position of one small branch of society, I suggest to the Minister that I have not seen that filleting of legislation anywhere before in Britain. I have seen it in new democracies. It is a terrible thing to do, because you are cheating the public. You are saying that this is in fact the law, when it is not. You have filleted it. That is what has happened with annexe B. I am really shocked by that as a parliamentarian, irrespective of the subject. That is fact; it is a very wrong thing to have done.

I am not at all happy that the current review fulfils best practice either. Having raised this for two or three years with Ministers and having received very little response, I have been informed twice now that there is a review. Indeed, I think that there are two reviews going on, if not three. However, I suggest that the one I believe the Minister is in charge of, to which he referred, is again in breach of the Government’s own regulations on how a review is conducted. Those regulations, which are quite old, are rather good. They are very clear, and they are very simple. They say that you must not have people who have skin in the game running a review, yet that is exactly what has happened.

In the Daily Telegraph today, a whole batch of rather wonderful women who do not sit in this House, alas, but run various women’s organisations and are medical have declared correctly that they have not been invited to give evidence. In other words, this review has been done without input from the very people who know more about it. I offered to give evidence myself, but I was not wanted. That is a different matter; I am not medical, so that may be perfectly fair. But these women are very special indeed and they have not been consulted. This means that women, generally speaking, have been left out of the review.

Worse than that, even, is that the people running the review, who I know—they are fantastic people such as the chief of nurses, the LGBTQ adviser, and so on—are wonderful, very interesting and hugely knowledgeable people, have more than skin in the game: they are the game. I believe it is not right, therefore, that a review that matters so much to 51% of the population and to their families should be conducted in this way. So I am rather unhappy about the review, too. It is being rushed through in parallel with this Bill. I suggest that it does not meet the Government’s own guidelines on consultations on reviews. There is no impartiality and the review team has tremendous interests—that is all too easy, but it does not give the right result.

I remember, again as a Member of Parliament, a massive review being conducted by the European Union into farming. My constituency had many farmers, and they came to see me because they were worried about what might come out of it. I found out from our own files here in London who was on the consultation—and, of course, there was not a single farmer. This is rather the same thing, I would suggest.

Of course, a number of colleagues in this House take their briefings from a lobby group called Stonewall. Stonewall has declared in its briefing for responses to this debate that any comments from me and others—the noble Lord, Lord Blencathra, for example—should be responded to by saying, “Blah, blah, blah”. I suggest that this is infinitely too serious for such a response.

Finally, I draw to the House’s attention the fact that I have been requested on a number of occasions by the Minister and others to give examples of what I am talking about. This is not at all easy, because all the examples given to me have been given in confidence. Whereas I know who they are—some are medical professionals and some have already had their jobs threatened—I can see why they do not want to be known.

However, a rather wonderful lady—I cannot say who she is—was raped in hospital by a man about a year ago. There is only one definition of rape in Britain and that is male on female; you cannot rape if you do not have the structure of a male. She was raped and she naturally reported it to the police. The police spoke to the hospital, which informed them that there was no male in the hospital, therefore the rape could not have happened. They forgot that there was CCTV, nurses and observers. None the less, it has taken nearly a year for the hospital to agree that there was a male on the ward and, yes, this rape happened. It is on record—I know where the case happened, who the police are and where the hospital is. I know everything about it because she gave me the full case to make sure I knew that what she was saying was true.

During that year she has almost come to the edge of a nervous breakdown, because being disbelieved about being raped in hospital has been such an appalling shock. The hospital, with all its CCTV, has had to admit that the rape happened and that it was committed by a man. The police have therefore changed their tune and become enormously supportive and helpful, and the case is going ahead. However, this has arisen directly from annexe B. The result of annexe B is that hospital trusts inform ward sisters and nurses that if there is a male, as a trans person, in a female ward, and a female patient or anyone complains, they must be told that it is not true—there is no male there. I refer there to the duty of candour in the National Health Service. I think it is completely wrong that the National Health Service should be instructing or allowing staff to mislead patients—to tell a straightforward lie. It is not acceptable. The National Health Service is admired globally and the duty of candour makes it imperative that it should be frank, open and honest with the patients, yet trust after trust has informed its staff that they must say the opposite of the truth when this situation arises. The impact on my new friend is appalling. I beg to move.

Photo of Lord Etherton Lord Etherton Crossbench 1:15, 16 March 2022

My Lords, I rise to oppose this amendment despite the eloquence of the noble Baroness, Lady Nicholson of Winterbourne. It is an important starting point, and it is clear from what the noble Baroness said and the terms of the amendment that it is not intended to change the Equality Act. It appears to be a comment on how that Act is applied in relation to this guidance, so the question is whether annexe B to the September 2019 guidance is consistent with the existing law. I say that it is entirely appropriate and consistent with the anti-discrimination law in the Equality Act.

Gender reassignment is a protected characteristic. The Act defines that protected characteristic in very wide terms. It includes where a person is proposing to undergo, or is undergoing, a process, or part of a process, for the purpose of reassignment by changing physiological or other attributes of sex. This means that a person may have the protected characteristic without having undergone full surgical reassignment, let alone having a gender recognition certificate. It will be sufficient, for example, if they had adopted attributes of a different sex, such as name, dress or hair, in their intended process of transition.

The Equality Act prohibits discrimination or harassment on account of a gender reassignment. Harassment is defined in very wide terms as engaging in

“conduct related to a relevant protected characteristic” and that conduct has the effect of “violating”, in the case of gender reassignment, the trans person’s dignity or

“creating an intimidating, hostile, degrading, humiliating or offensive environment for” that person.

Under the Equality Act, a person who provides a service to the public, which would include the National Health Service, must not discriminate against a trans person in the terms on which the service is provided; nor can they subject the trans person to any other detriment or harass them. The service provider must make reasonable adjustments where appropriate.

If matters stopped there, the NHS would be acting unlawfully in failing to allocate accommodation and other facilities to match the gender identity of transsexuals. There are limited exceptions to those requirements and they are contained in Schedule 3 to the Act. Amendment 184ZBA refers itself to paragraphs 26 to 28 of that schedule; in fact, paragraphs 26 and 27 are irrelevant, as they deal with sex discrimination.

Paragraph 28 is relevant. It says, in relation to gender reassignment discrimination, that a public service provider does not contravene the Equality Act only because of anything done in the provision of separate or different services for persons of each sex or

“the provision of a service only to persons of one sex”, provided each of those cases is

“a proportionate means of achieving a legitimate aim.”

This means that any permitted derogation from the anti-discrimination and anti-harassment provisions governing the NHS in relation to trans people requires a case-by-case appraisal. Any derogation must be for a legitimate aim. It is not a legitimate aim that some people feel uncomfortable sharing accommodation and facilities with trans people of the opposite birth sex. That would make a nonsense of having the statutory protected characteristic in the first place. Crucially, any derogation must also be proportionate, which means the least discriminatory in all the circumstances.

In light of this legal framework, I can see nothing at all wrong with the 2019 NHS guidance. It correctly identifies trans people who have the protected characteristic under the Equality Act. The guidance says that trans people should be accommodated according to their gender presentation. It recognises that reasonable adjustments can often be made to ensure the dignity of trans people, such as by giving privacy by the use of curtains or accommodation in a single side room adjacent to the gender-appropriate ward, and that a trans person may be placed in an otherwise opposite-gender ward if—but only if—that is proportionate to achieving a legitimate aim. In that context, the guidance refers to a safe nursing environment, but it would also extend to safeguarding requirements, where relevant. The guidance contains similar provisions for children and young people.

All in all, this is entirely consistent with the statutory framework. In my view, this amendment is fundamentally misconceived.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

My Lords, with apologies to the House and particularly to the noble Baroness, Lady Brinton, whom I should have called earlier—but it is early in the morning—I invite the noble Baroness to speak.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat Lords Spokesperson (Health)

My Lords, it is a pleasure to follow the noble and learned Lord, Lord Etherton, who very carefully laid out the law on the Equality Act and how it fits in with the guidance.

The amendment from the noble Baroness, Lady Nicholson, on same-sex accommodation in hospitals, returns to her concerns about the balance between the Equality Act and NHS guidance Delivering Same-Sex Accommodation. I note that the Minister said in Committee that

NHS England is currently reviewing the

The current NHS guidance is already rooted in the Equality Act 2010 and includes guidance on accommodating trans people. That does not mean that women are excluded. The guidance was created in 2010 and updated as recently as 2019. As the noble and learned Lord, Lord Etherton, said, it is very clear about the reasonable adjustments for trans people, but that does not remove the core principle that all patients should be safe and dignified.

Amendment 184ZBA seeks to create a false understanding of the ways in which this works. It would also revoke annexe B in its current form, but, frankly, that is unnecessary, because the Equality Act 2010 and the guidance already provide an effective mechanism for inclusion in the context of single-sex spaces. The whole point about annexe B is that it guides NHS staff in how to deliver same-sex accommodation for trans people, which is a very small number of patients, and probably most NHS staff have not had trans patients. It does not supersede the Equality Act. It is accompanied by the NHS safeguarding policies, underpinned by the Care Act, which set out how children and vulnerable adults will be protected from harm and abuse.

The problem is that the amendment would create a blanket policy against trans inclusion in NHS accommodation, resulting in trans women having to be accommodated in men’s NHS accommodation and trans men in women’s NHS accommodation. This would create an environment that was contrary to the dignity and well-being of patients. The amendment is therefore unnecessary and, frankly, harmful. It also goes against the careful NHS guidance and breaches the key element in the Equality Act, which the Minister reminded us of in Committee. He said:

“This means that the rights and needs of women and trans women are equal in law”.—[Official Report, 9/2/22; col. 1725.]

Above all, there is no evidence to suggest that the status quo is not working. I hope that the noble Baroness, Lady Nicholson, will withdraw her amendment.

Photo of Lord Farmer Lord Farmer Conservative

I rise to speak in support of my noble friend Lady Nicholson and her Amendment 184ZBA, as I maintain that it would bring NHS trusts back into line with the Equality Act 2010. Part 7 of Schedule 3 to the Act permits discrimination on the grounds of sex and enables provision that is separate, different and/or provided to only one sex if it is

“a proportionate means of achieving a legitimate aim”.

Paragraph 27 of Schedule 3 specifically provides for separate male and female single-sex hospital wards. A hospital ward where patients are, by definition, vulnerable and dependent on their surroundings for safety, privacy and dignity—for example, they are unwell, sleeping, in various states of undress, receiving intimate personal care, confused et cetera—comfortably meets the “legitimate aim” test.

Further, annexe B mis-states who is included under the protected characteristic of gender reassignment by widening it to include transgender and non-binary people. This has no basis in law. Section 7 of the Equality Act 2010 states that the protected characteristic of gender reassignment refers to transsexual people and:

“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”

It is important to establish what percentage of transgender people fit this description. In 2016, a meta-analysis of 27 studies estimated that approximately 0.01% of the population have a transgender diagnosis and/or surgical or hormonal treatment. In contrast, 0.35% of the population self-identify as transgender. This means that only 2.9% of those who consider themselves part of the transgender community are undergoing any gender-affirming treatment. The vast majority, 97.1%, simply self-identify and make no modifications to their natal sex body, so there is a very high probability that someone born male who is supported under annexe B to be in a female ward is genitally intact. The risks this presents cannot be batted away. At the very least, women from religious minorities who require single-sex wards may be prevented from accessing healthcare. Some policies allow known male sex offenders who identify as women on women’s wards.

Further, Explanatory Notes to Part 16, Schedule 3, Part 7, paragraph 28, on separate and single-sex services, show that the Equality Act permits single-sex wards also to exclude patients under the protected characteristic of gender reassignment if that treatment by a provider can be objectively justified—in other words, if there is a legitimate aim as outlined above. Yet multiple NHS trusts have ignored this justification and generated policies based on annexe B which undermine the safety, dignity and privacy of women patients and cause much distress. The NHS has failed to evaluate the effects of the current policy in this area, so there is a lack of objective evidence and data on this issue. But there is much anecdotal evidence from women who have shared their stories with politicians and the media that current practice is harming women in NHS care. This includes women who have been traumatised through violence from men and then retraumatised. Annexe B, in my opinion, is unlawful and should be rescinded.

The NHS should find alternative ways of accommodating transgender patients, rather than removing the safety, dignity and privacy of all the other patients in a ward by making that ward mixed sex.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat Lords Spokesperson (Digital) 1:30, 16 March 2022

My Lords, given the hour, I shall be extremely brief. As a long-standing supporter of single-sex wards and single-sex provision, I raised the issue of the wording of annexe B and the status of its review in Committee. Tonight, I am continuing to attempt to get answers to questions raised in Committee and in correspondence with the Minister, the noble Lord, Lord Kamall.

It seems clear that the current review of annexe B is not the review promised by the Secretary of State, Sajid Javid, last August. We tried to get to the bottom of this in correspondence. I hope that the Minister, when she responds today, will be able to say exactly what the status of that review is. We have been informed that it is a scheduled, standard internal review—whatever that is—but there seem to be no terms of reference, there does not appear to be any analysis of how well the current provision of same-sex accommodation is working, the review has not been publicised internally, the review team is not independent, and the review seems largely to have been conducted behind closed doors. At the very last moment, certain organisations from which evidence was recommended to be taken did indeed give evidence, in a one-hour Zoom session—and that was about it. So it is a totally unsatisfactory form of review and evidence-taking, and it seems to be moving in a particular direction without any transparency at all.

I very much hope that the Minister will be able to give us much more information about the review, its purpose and whether it is indeed the one the Secretary of State promised; and, if it is not, whether terms of reference will be published publicly so that we can actually have a discussion about how they should be formulated.

I would say, in passing, that it is vital as part of this review that the Government publish what their view about the legality of single-sex wards is. We have already had two interpretations of Schedule 3 to the Equality Act 2010. I tend to agree more with that of the noble Lord, Lord Farmer: paragraphs 26, 27 and 28 seem to me to be utterly clear in permitting single-sex wards in the NHS, and I cannot see how the noble and learned Lord, Lord Etherton, has come to the conclusions that he has. But let us see what the Department of Health’s interpretation is and whether annexe B really does conform to the Equality Act. Let us get down to the basics. It is really important.

Finally, I would simply say that it seems to me that there is no way that annexe B can conform to the Equality Act currently. It says:

“Non-binary individuals, who do not identify as being male or female, should also be asked discreetly about their preferences, and allocated to the male or female ward according to their choice.”

Being non-binary is not a protected characteristic, so what on earth is it doing in annexe B?

Photo of Lord Blencathra Lord Blencathra Conservative

My Lords, I am so pleased I waited to hear the noble Lord, Lord Clement-Jones, make an excellent speech. I think what he said is apposite, and I hope the Minister will deal with the point about the quality of this review and how public it will be.

When we moved an amendment in Committee to protect female patients and ensure their rights under the Equality Act 2010 to have NHS hospital accommodation exclusively for women of the biological sex of a woman, a number of Peers, including the noble Lord, Lord Clement-Jones, who did not agree with our amendments nevertheless pointed out that there was a complete disconnect between the general guidance issued in 2019, which stated that women must have their choice of single-sex wards protected as a top priority, and annexe B, which completely undermined that guidance and said that men identifying as women could also be placed in female-only wards.

The general guidance and that annexe B guidance fail to set out the rights that biological women have under the Equality Act; and our amendments seek to rectify that by calling for annexe B to be rewritten as soon as possible and for the new guidance to clearly spell out to NHS trusts the exceptions and rights of women under the Equality Act as far as healthcare is concerned. Who could object to that? Well, of course, the main briefing against this perfectly reasonable suggestion comes from those in Stonewall, a now thoroughly discredited organisation that has abandoned gay women. They have been thrown out of this place, and many other organisations, and yet they push their ideology in contravention of the facts. Stonewall did an absolutely excellent job when it was created, fighting for gay and lesbian equality, but it has abandoned gay people, especially lesbian women, in a feverish pursuit of trans ideology.

When we debated this, and prison units for women, many Peers seemed to think that most trans women had made strenuous efforts to become women. That is simply not the case, as my noble friend Lord Farmer has pointed out. Only a very small minority—well under 5%—with genuine gender dysphoria has taken hormone treatment, had operations and adopted the lifestyle, behaviour and character of women. I salute their courage in all the steps they have taken to change their gender and live in that lifestyle. They should be treated equally, both legally and morally, and there is ample scope in all NHS hospitals to have special provision for them.

But I am afraid that the vast majority of men claiming to be women or self-identifying as women have done absolutely nothing to try to become like a woman, and they simply do not intend to. They want to keep all their male attributes but demand the rights of real women. What sort of men want to invade women’s toilets, changing rooms, safe places and hospital beds, when they have not made the slightest effort to become like women or behave like women? I suggest that they are acting out a perverse fetish whereby they can go into women’s spaces and flash their body parts and get away with it when they would be arrested if they did that outside. Therefore, while we should have the utmost respect for women, men, and men who have genuinely made the change to become women, we should have nothing but contempt for these fake trans women. We may not force a vote on this tonight, but a time is coming soon when we will, and Ministers had better choose the right side.

Last week, the right honourable Harriet Harman said that Labour had a problem with women. I commend her honesty. Also last week, the shadow Home Secretary, Yvette Cooper, was asked to define a woman. Three times, she said that she did not want to go down a rabbit hole on this. Now most dictionaries define the Alice in Wonderland phrase “down the rabbit hole” as meaning entering a strange and absurd alternative universe. The shadow Minister for Women, Anneliese Dodds, was asked the same question on “Woman’s Hour” and said that the definition of a woman depended on the context. So, noble Baronesses, there you have it. Depending on the context, you may or may not be a woman, and trying to define your biological sex more may result in entering a strange alternative universe.

However, of course, there is always a man who can cut through all that nonsense and define a woman. Keir Starmer was able to pronounce that trans women are women; that is the answer of a lawyer, not a doctor. No, Sir Keir: men can legally change their gender and call themselves trans women, but they are still men, not women. No wonder JK Rowling said at the weekend:

“I don’t think our politicians have the slightest idea how much anger is building among women from all walks of life at the attempts to threaten and intimidate them out of speaking publicly about their own rights, their own bodies and their own lives. Among the thousands of letters and emails I’ve received are disillusioned members of Labour, the Greens, the Lib Dems and the SNP. Women are scared, outraged and angry at the deaf ear turned to their well-founded concerns … Now Keir Starmer publicly misrepresents equalities law, in yet another indication that the Labour Party can no longer be counted on to defend women’s rights. But I repeat: women are organising across party lines, and their resolve and their anger are growing.”

I know that most Ministers in this place have a sensible view on this, but they are tied to the policies of Cabinet Ministers in another place. So I say this to my right honourable friends in another place: get off the fence and publicly support women, or suffer the same fate of the opposition parties that are now regarded as hostile to women. Accepting this amendment would be a start to showing that the Government will defend the rights of women to have their own safe spaces, to have their dignity respected and to have the Equality Act properly applied in all NHS facilities.

I am pleased to support my noble friend Lady Nicholson.

Photo of Lord Cashman Lord Cashman Non-affiliated

My Lords, it is late, so I will abandon the speech that I prepared. I absolutely agree with the analysis by the noble and learned Lord, Lord Etherton, of the Equality Act and annexe B in relation to it, as well as of the inclusion of the NHS’s 2019 guidance.

When we address issues of balancing rights, we must always address them on an evidence-based approach and never on anecdotal evidence. Freedom of information requests around the country have shown that there is no evidence to suggest that annexe B in its current form needs to be revised. I could talk about my concerns about what this amendment would cause for trans women and trans men seeking treatment and care in the NHS. I will leave that to your Lordships’ imagination. However, I have to say, hearing the way in which trans women, trans men, trans families and trans teenagers have been represented by some in this House tonight has left me deeply ashamed. It is part of a continuing narrative to grab something of a minority of a minority and use it to represent the entire minority. It was done to people like me when we were arguing with the noble Lord, Lord Blencathra, when he was in Home Office, for an equal age of consent.

This was the language being used privately and publicly to describe people like me—men like me—to suggest that I was not worthy of being treated as an individual, contributing member of society who should be afforded the same protection of the law and the same obligations to the law. History shows me that the language being used to represent trans women, trans men and trans teenagers—and their mothers and fathers—is exactly the same as has been used against minorities across the centuries to diminish those individuals, to dehumanise and demonise them, and then to remove their rights, including their right to belong.

As the co-founder and founding chair of Stonewall, I am immensely proud of the inclusion of rights which Stonewall has adopted, continues to adopt and will not flinch away from. As an equality organisation, it cannot believe in partial equality; it believes in the equality afforded to individuals regardless of difference. I urge the Minister to respond by calling for the withdrawal of this amendment, which causes me deep, deep concern. Can she please reassure us that any review of the extremely important Equality Act and the guidance of 2019 will be only evidence-based, and that she will then publish the evidence?

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated 1:45, 16 March 2022

My Lords, I apologise that I did not speak on this issue in Committee. As I had stayed late to speak on the prior amendments in defence of women’s reproductive rights, I decided to stay because this is a natural follow-on. Despite what has just been said, this is actually about women’s rights and women’s concerns that NHS guidance on trans issues effectively undermines the right to have same-sex wards in hospitals. I am not going to rehearse the whole issue around gender identity tonight—we are all far too tired. I want to keep this quite straightforward for me.

The noble and learned Lord, Lord Etherton, rather dismissed these concerns when he more or less said that we cannot pander to people who feel uncomfortable. I want to express something about women feeling uncomfortable. Having been a woman in hospital—when you are at your most vulnerable and needing to feel safe—the idea that you cannot guarantee single-sex wards in that instance is not just uncomfortable but also about rights that have been won. It is a perfectly legitimate right. Women should not be made to feel embarrassed or be patted on the head as if to say, “Don’t you worry your pretty little heads, this is all to do with equality”.

We have just heard a contribution which effectively said “Watch your language”. In response, I say, “Watch what you’re suggesting women should do”—namely, to back off from this issue. I do not think that women should and they will not. It is also the case that not all trans people are represented by trans activists. I know trans women—yes, this is anecdotal—who do not support trying to have what will effectively be mixed wards, or confusing or undermining single-sex wards in NHS settings.

The noble Lord, Lord Clement-Jones, made a very important point on which I wanted to finish. There are a lot of concerns on all sides, so many noble Lords have said, “Let’s have a review”. It seems that the Secretary of State wants a review, but we now do not know whether or not the review which is happening at the moment is the review he wants. The review happening at the moment is not satisfactory. It is that peculiar internal NHS review which has been referred to.

The review is carried out with no public terms of reference. It all seems to be carried out in secret and is being co-led by Dr Michael Brady, who is the adviser for LGBT at NHS England. I am sure that he is incredibly well intentioned but I suggest that being its LGBT adviser might make him rather the opposite of impartial.

We are now told that the review has looked to Stonewall and Mermaids for support on the review. It has been reported that in December, the lead reviewer wrote to campaign groups supportive of the gender identity position on this issue, assuring them that there were

“no plans to reduce the existing rights of transgender people”.

What I have just said is not evidence at all; it is all hearsay. I am just repeating what somebody said and somebody may have said. I can tell your Lordships that I am not satisfied either because I do not want to find out about this review by reading today’s newspapers, which is basically where I got that information, and leaked emails. This is not satisfactory.

I want the Government to take this seriously and recognise that when somebody says that there are no plans to reduce the existing rights of transgender people, what women hear—if I can translate it—is that women-only wards are not guaranteed at all. I want the Government to be honest with us about what they believe they are arguing for. I also want them to take us away from having to discover these things in newspapers and, instead, assure us that a new review will be set up that is independent and fully resourced—one that has a clear set of terms of reference, which people on different sides of this argument can look at and discuss openly. They should try to detoxify it by bringing it out in the open and having a credible review with all sides of this argument consulted, represented and talked to, and women should absolutely be asked and not given an hour’s Zoom as an afterthought.

Photo of Baroness Hunt of Bethnal Green Baroness Hunt of Bethnal Green Crossbench

My Lords, I will be very brief because it is extraordinarily late. I have just a few short observations. First, as a lesbian woman in this House I have spent many years reading Hansard and watching the House’s proceedings, and hearing lesbians being referred to in far less positive terms than they are today. It is quite a contrast to hear from others in this Chamber such concern about lesbian women. I want to put it on record that many lesbians are entirely supportive of the current status quo in relation to the provision for trans people in single-sex and other accommodation. This suggestion that lesbians are opposed to it is unhelpful. In the spirit of detoxifying the debate, it is important that we stick to the information and facts that are available.

Secondly, there is a review being undertaken. There are many reviews in the NHS but I have heard about this review more times on more platforms, via more mediums, than any other thing that seems to be going on in the NHS at the moment, despite the fact that we are in the middle of a global pandemic. I have contributed to that review. I have written and I am sure that the noble Baroness, Lady Nicholson, has done the same. We are more than capable of lobbying and influencing different institutions to put our view forward. I am curious about the consequences of that review and it will be interesting to see what comes next.

My other observation is that the noble and learned Lord, Lord Etherton, is a very good authority on the Equality Act and I trust him completely. I do not think his analysis is subjective or a hot take. He does know his stuff.

Finally, as the daughter of a mother who trained to be a nurse and then a midwife, and who retired after 40 years as a professor of nursing and midwifery and trained hundreds and hundreds of nurses and midwives, I have absolute confidence in the professionalism of NHS staff to manage tricky issues when they occur. They do not just occur in relation to the 0.002% of the population who may or may not be trans. Those come up in all sorts of areas and I trust the NHS to handle those situations when they do.

I am 42 and expect that the entirety of my life peerage, which I imagine and hope is another 40 years, will contain a lot of these discussions. These discussions will continue, and I hope we can have them in a manner that is respectful towards each other and our different perspectives.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, I am absolutely delighted to be speaking in a debate after the noble Lord, Lord Cashman, and the noble Baroness, Lady Hunt. My biggest beef with Stonewall has been its refusal to debate. By that policy, it has built up a bank of fire and argument which has done a great deal of harm to trans people and to others. If we are seeing an end to that, leading to circumstances under which we can talk these things through—they are not easy issues—and reach a comfortable conclusion, I shall be absolutely delighted. I have asked Stonewall many times if I can discuss things but it has never acceded. Perhaps this is a new beginning.

In the first 20 years of my life in this House I listened to a lot of debates in which women were arguing for single-sex wards. I cannot, on the basis of listening to them, think anything but that it is a legitimate demand; that it is something that really matters—not perhaps to every woman, but to women at large—and that it absolutely constitutes the sort of grounds contemplated in the Equality Act for making something single sex.

It is absolutely clear in the definitions in the Equality Act that trans women are men. So if you have a trans woman in a female ward, that is a man in a female ward and that is against what female wards were intended for. That is the starting position; it is not the most humane ending position. Like the noble Baroness, Lady Hunt, I have a great deal of faith in the nursing profession to resolve difficult issues and reach the best possible solution. But the starting point should not be annexe B. It should be the Equality Act and the recognition that separate spaces for women—particularly when they are vulnerable—are something that we as a society wish to have.

When we last had a review of the Gender Recognition Act, Stonewall submitted evidence to say that it wished the exceptions under the Equality Act to be removed. I do not start from that position. I start from the position that those exceptions are very important. Nor do I follow the noble and learned Lord, Lord Etherton, in suggesting that the review has to be case by case, as in person by person. It is clear to me from the judgments made under that Act that this refers to the circumstances of an institution. An institution is quite entitled to say that it will not allow any male-bodied people to share a hospital ward purely for female-bodied people.

As I said, I do not regard that as a satisfactory end position. The right way to get to a proper conclusion is debate and a review that is not as obviously biased and unsatisfactory. A review carried out by people so committed to a highly politicised organisation—one embracing the extremes of postmodernism in its attitudes to people—is entirely unsatisfactory. This has to be what the noble Baroness, Lady Hunt, has just called for: a broad conversation and a broad review—one that respects the position people find themselves in. It should be interested in arriving at an evidenced position at the end of it. That is not what we have at the moment. I hope it is what we arrive at and that this House can play its part in that. I am absolutely delighted that at last we have a conversation.

Photo of Baroness Barker Baroness Barker Liberal Democrat Lords Spokesperson (Voluntary Sector), Deputy Chairman of Committees

My Lords, I too have spent many hours in your Lordships’ House discussing the subject of single-sex wards in hospitals. There is a continuing discussion to be had about single-sex provision in healthcare, but I do not think this debate is about that at all. I think this is a proxy debate for a campaign that is largely the one that was set out by the noble Baroness, Lady Nicholson. It is a campaign which seeks to drive differences between trans people and other women.

The noble and learned Lord, Lord Etherton, was absolutely right in his exposition of the law. The equality law is the piece of legislation that carefully addresses the differences between groups of people and the different treatments that they deserve or are entitled to in order to achieve equality under the law. We have had a variety of views, from the noble Lord, Lord Blencathra, who frequently describes trans women as men, through to some of the rest of us who believe that they are women with a different experience.

The job of the NHS is, and always must be, to provide safe care for everyone. That is why we have had guidance in force for many years that is compliant with equality law. I say again, as I did earlier in our debate, that unless and until the noble Lord, Lord Blencathra, and the noble Baroness, Lady Nicholson, come forward with evidence that that is not being provided by the NHS, we should simply not pay attention. We should dismiss the amendment.

Photo of Baroness Walmsley Baroness Walmsley Co-Deputy Leader of the Liberal Democrat Peers 2:00, 16 March 2022

My Lords, I sense that the House would like to move to the Front-Bench speeches. I should like to say first that I have not been briefed by Stonewall. My views are my own and not influenced by any lobbying group. I am a woman and I am not going to support the amendment for the reasons that the noble and learned Lord, Lord Etherton, and my noble friend Lady Brinton have made clear: it offers a solution to a problem that does not exist. However, when the Minister comes to reply, I hope that she will give my noble friend Lord Clement-Jones some answers to his questions about the review, because they are legitimate.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues), Shadow Spokesperson (Health)

My Lords, I need say only a couple of things. First, I should declare an interest as a non-executive director of an NHS hospital that has single-sex wards. My money is definitely on the interpretation of the law given by the noble and learned Lord, Lord Etherton. The noble Baroness, Lady Hunt, is quite right—the former Master of the Rolls probably has a good grasp of this issue. The second thing that she is right about is that I also trust the NHS to be able to deal with the issues that may arise on its wards. In Committee, the Minister correctly said that this amendment was not necessary and I hope that for consistency she will continue to say that it is not necessary because all the aspects are covered by the law and the procedures of the NHS. If there is to be a review, I hope that that is transparent and we will discuss the matter in due course.

Photo of Baroness Penn Baroness Penn Baroness in Waiting (HM Household) (Whip)

My Lords, I thank my noble friend Lady Nicholson for bringing this debate before the House today. I understand the sentiment behind her amendment and I am appreciative of all her work advocating for women’s rights. It is an absolute departmental priority that all patients feel safe when receiving NHS services. This is particularly important where patients are interacting with the healthcare system because they may be particularly vulnerable.

My noble friend and all noble Lords are clearly well aware that NHS England and NHS Improvement are currently reviewing the operational guidance on delivering same-sex accommodation to ensure that it remains focused on privacy, safety and dignity for all patients. An internal review of the guidance is the right way in which to ensure that it is fit for purpose and complaint with all statutory obligations. The content of any updated guidance is being informed by engagement with a wide range of stakeholders and in accordance with NHS England’s statutory duties outlined in the Equality Act 2010, including the public sector equality duty. Any revised guidance is due to be published later this year.

I understand that some noble Lords have concerns about the current guidance, and the department remains open to considering this issue further. I reassure all noble Lords that, before publication, Ministers will seek assurances from NHS England and Improvement that it has fully considered whether the guidance is compliant with existing legislation and with NHS England’s relevant duties. However, as it currently stands, accepting this amendment would pre-empt the outcome of the review of the guidance and NHS England, as part of its review, will be considering the Equality Act 2010 and how it applies to the guidance.

I hope my noble friend can appreciate the need to allow NHS England and Improvement to conduct its review of the guidance in full. NHS England and Improvement is fully aware of importance of the review of the guidance to so many and is working to publish the updated guidance at the earliest opportunity.

It is late and we have had a number of debates on a number of important and emotive issues. I thought I might try to conclude my contribution by finding the common ground I thought I heard in the different contributions that we had to this last debate, and I am sorry if I misrepresent anyone in doing so. I think that everyone agreed that wards should be places of safety and dignity that allow patients to get the care they need; that we need to respect the rights of everyone in looking at how we deliver on that and that, in doing so, any guidance and practice is in line with the Equality Act and the law more generally; that the guidance that is produced is practical and effective for clinicians who are trying to deliver the best possible outcomes for patients; and that we approach this and other issues where there is disagreement or conflict about how we adhere to those aims from a position of evidence, compassion, empathy and respect. With that, I hope that my noble friend feels able to withdraw her amendment.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat Lords Spokesperson (Digital)

Before the Minister sits down, she has not answered the question about the status of the review promised by the Secretary of State, Sajid Javid, last August.

Photo of Baroness Penn Baroness Penn Baroness in Waiting (HM Household) (Whip)

My Lords, it is NHS England’s responsibility to ensure that its own guidance is compliant with the relevant provisions in the Equality Act and works operationally and effectively. That is why NHS England is doing the review of its guidance. As I understand it, the Secretary of State has previously said that he had asked the Department of Health and Social Care for fresh advice on this issue, and he is indeed taking advice from the department on this matter.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

Before the Minister sits down, in view of the recent media revelations, might there need to be a review of the review of the guidance? The review of the guidance is coming into disrepute, and we do not understand how we can hold it to account. I do not want it to be left to newspapers.

Photo of Baroness Penn Baroness Penn Baroness in Waiting (HM Household) (Whip)

My Lords, I think it is worth making two points. The NHS review is of operational guidance and is called privacy, dignity and safety and is reviewing the entirety of delivering the same-sex accommodation guidance. This guidance includes annexe B. I thought I had in part answered the noble Baroness’s point in my remarks where I said that I understand that some noble Lords have concerns with the current guidance and that the department remains open to considering this issue further. I also reassure noble Lords that, before publication, Ministers will seek reassurances from NHS England and Improvement that it has fully considered whether the guidance is compliant with existing legislation and NHS England’s relevant duties.

Photo of Baroness Nicholson of Winterbourne Baroness Nicholson of Winterbourne Conservative

My Lords, I am very grateful to my noble friend Lady Penn and my noble friend Lord Kamall, if I could say on behalf of everyone, for all the magnificent work they have put in throughout the whole of this great debate, not just this evening but day on day, week on week, it almost seemed. We are amazed by their dedication and huge competence.

This evening’s has been a very helpful debate. I know that I speak for many noble Lords, including, I hope, my noble friend Lord Blencathra—I hesitate to speak for him because he was once my Chief Whip, so I remain almost silent in front of him. It has been a most interesting and helpful debate and I am confident we can take it further, and with that I withdraw the amendment.

Amendment 184ZBA withdrawn.

Amendment 184ZBB not moved.

Clause 166: Regulations