Sex and the NHS constitution

Sex Matters welcomes the announcement by the Department for Health and Social Care that it is updating the NHS Constitution for England to reflect the Equality Act 2010 and protect single-sex care. 

Secretary of State Victoria Atkins said:  

“We have always been clear that sex matters and our services should respect that.” 

When the NHS constitution was first adopted in 2009, its first principle, to provide a universal service, did not mention the protected characteristic of sex but instead included “gender”. This sloppy language allowed confusion, which was exploited by activists inside and outside the NHS. 

The NHS constitution guarantees “separate-sex” sleeping accommodation, but in practice the policy has operated on the basis of gender self-identification as set out in the “Annex B” policy. 

The NHS also messed up its data, despite being told by its own experts in 2009 that the term “gender” was “too ambiguous to be desirable or safe”. It failed to make sure that sex was accurately and clearly recorded, allowing both patients and healthcare professionals to identify themselves on the basis of their personal preference. Most recently it adopted a system developed by a US company that records patients’ “legal sex” and whether a person is “cisgender” or “transgender”, and asks clinicians to fill in a mix-and-match checklist of organs. This is confusing, dangerous and exclusionary. 

The proposals 

The government proposes to update the first principle of the NHS constitution to reflect the Equality Act 2010 and state that healthcare “is available to all irrespective of sex, race, disability, age, sexual orientation, religion or belief, gender reassignment, pregnancy and maternity or marriage and civil partnership status.”

It then makes three specific proposals:

A new pledge on single-sex intimate care 

The new pledge will state: 

“Patients can request intimate care be provided, where reasonably possible, by someone of the same biological sex.” 

Intimate care is defined as an examination of breasts, genitalia or rectum, and care tasks of an intimate nature such as helping someone use the toilet or changing incontinence pads.

Clarification on single-sex accommodation

Additional wording to be added to the existing pledge: 

“If you are admitted to hospital, you will not have to share sleeping accommodation with patients of the opposite biological sex, except where appropriate. The Equality Act 2010 allows for the provision of single-sex or separate-sex services. It also allows for transgender persons with the protected characteristic of gender reassignment to be provided a different service – for example, a single room in a hospital – if it is a proportionate means of achieving a legitimate aim.”

This is in line with our recommendations (published in 2021) to revise “Annex B”, the NHS policy on how to accommodate transgender patients and maintain single-sex accommodation. 

While there have been some media reports that this means that transgender males will still be placed in “female-only” areas and then be provided with a single room if someone complains, we do not think this is the correct interpretation. We will be giving input to the consultation on this, asking for more clarity in the revised operational policy.  

Clarification on single-sex and separate-sex services and sex-based language

The final proposal is to add wording that states: 

“You have the right to expect that NHS services will reflect your preferences and meet your needs, including the differing biological needs of the sexes, providing single and separate-sex services where it is a proportionate means of achieving a legitimate aim.”

The introduction to this states: 

“Patients may be unclear about whether a specific condition applies to them and may not come forward for treatment if language is ambiguous. Clear terms that everyone can understand should always be used.”

The response from healthcare organisations

These proposed changes to the NHS constitution are a welcome and overdue return to common sense, and have come about because thousands of ordinary women and men have raised it in conversations and with their MPs, and because journalists have covered the issue.

But the response from organisations representing healthcare professionals and NHS managers reveals the problem of engrained institutional capture by gender ideology. 

The British Medical Association (BMA), the trade union for doctors, entirely misses the point of the change, and does not consider female patients at all in its response. Dr Emma Runswick says:

“If these proposed changes come into effect, transgender and non-binary patients will potentially find their access to vital NHS services limited.”

The new policy on intimate care and single-sex care would impact on trans and non-binary healthcare professionals who want to examine patients of the opposite sex without their consent. It would not not impact on trans and non-binary patients. 

The BMA has previously called for trans healthcare workers to be “able to access facilities appropriate to the gender they identify as” and “ensure trans people are able to access gendered space”. It is simply not possible to protect the privacy and dignity of single-sex accommodation while also including members of the opposite sex. 

Professor Nicola Ranger, chief nursing officer and deputy chief executive of the Royal College of Nursing (RCN), also failed to consider patients other than those with trans identities when she said: 

“Trans and non-binary patients are deserving of high-quality care like any other patient and changes to health policy should be done with them, not unto them.”

Matthew Taylor of the NHS Confederation, which represents the top management of NHS trusts, said:

“Whatever changes are eventually introduced following the consultation need to be clear and workable for NHS staff, who should not expect to have to interpret ambiguous guidance at a local level.”

Last year the NHS Confederation released guidance which told hospitals not to record patients’ sex but to ask them the ambiguous question of how they think of themselves, giving the options “female”, “male”, “non-binary” and “in another way”. It advised that “trans and non-binary people should be supported to use the bathrooms they feel most comfortable using”, disregarding the need for clear workable policies to protect the comfort and privacy of other patients. The guidance went on to say that patients have no right to know the sex of a healthcare worker, and that a patient cannot request same-sex care where there is no clear clinical benefit. 

The proposed changes to the NHS constitution will now be open for an eight-week consultation.

Sex Matters will be responding to it (and will publish some guidance), and will write to these professional bodies to call on them to consider the needs, concerns and welfare of all patients in their response.