Amendment 184ZBA

Part of Health and Care Bill - Report (4th Day) (Continued) – in the House of Lords at 1:15 am on 16th March 2022.

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Photo of Lord Etherton Lord Etherton Crossbench 1:15 am, 16th 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.