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.