The NHS Constitution and trans people

“Strengthen privacy, dignity and safety”. Without naming trans people, the government call us dangerous, and their headline on their NHS consultation only mentions trans exclusions. The consultation asks about other things, but that news story mainly goes on and on about The Trans Threat. Single-sex wards are mentioned three times: they will be “respected”. Someone from Healthwatch welcomes the plans.

Here is the current Constitution. It pledges that patients will not have to share sleeping accommodation with patients of the opposite sex, except as the Handbook to the Constitution sets out. Here is the Handbook. Both Handbook and Constitution now pledge not to discriminate, including on grounds of gender reassignment. The handbook suggests being in mixed sex accommodation might be in the interests of the patient, or the patient’s choice. It does not mention trans people there: that is in the policy document on trans people. Constitution and handbook describe sex discrimination as “gender discrimination”, because sex and gender were interchangeable synonyms in such documents before the anti-trans campaigns really got started.

Here is the Consultation, which closes on 25 June 2024, and this page links to pages where you can respond online. As the consultation says, the Constitution declares rights rather than changing them. So it cannot contradict the Equality Act, and is open to a challenge under the Code of Practice. But, previously the policy was to include trans women as women, trans men as men, and now we might have to sue.

The review proposes good things. People concerned that their loved one is deteriorating should be listened to. They even want to strengthen the duty to reduce disparities in outcomes between poor people, who have lower healthy life expectancy, and rich people. They want a new commitment to the environment, and say in the consultation this relates to carbon footprint. They want senior managers to listen to all workers, and “promote an open and fair culture”. They want to value unpaid carers and NHS volunteers. When someone needs care for more than one condition, they want a “co-ordinated approach” between services.

They want to support people to remain in and return to work. Well, if that means treating people in time before their condition deteriorates, or leaving them unfit for work, it is a good thing, if it means cutting sickness benefits or refusing sicknotes to sick people, it’s a bad thing.

What about trans-related proposals?

After Cass, trans people will be concerned about the proposal to integrate health research into health and care. Currently, patients are asked if they are willing for their data to be used in research, and without their explicit consent it will not be. Trans people may want our data to be private.

Under the heading “Sex and gender reassignment”, there are several proposals, each with a chance to give a 250 word response. When someone requires a same-sex clinician this should be respected. “We are defining sex as biological sex”, which may discriminate against trans employees.

They want the constitution to include a pledge: “Patients can request intimate care be provided, where reasonably possible, by someone of the same biological sex.”

The proposals on single-sex wards are couched carefully, because of the Equality Act. But when they say it is necessary to show there is a good reason for limiting trans people’s access, they assume that the decision will be made to exclude, and a “good reason” found. The consultation claims this will be a “proportionate means of achieving a legitimate aim”. They propose a reference to “biological sex”. It would read,

“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.”

They propose a new right that NHS services should meet “the differing biological needs of the sexes, providing single and separate-sex services” when appropriate. But the consultation text refers to “clear terms that everyone can understand”, which may mean a ban on using inclusive language for trans men and nonbinary people. But everyone with a cervix needs a smear test, and trans women need breast screening.

And under the heading “Technical changes to reflect the Equality Act 2010”, they propose changing the word “gender” to “sex” in the Constitution, even though that will require secondary legislation.

Consultation analysis should show what proportion of respondents supported proposals, and any original or interesting points made. Please share points you would like to make in the comments. It might be useful to propose particular changes to the proposed wording in the constitution.

Here are some points I want to get across:

Trans people’s privacy includes not outing us as trans. So all provision for trans people should be in the single sex ward for our true gender, as soon as we decide we will transition.

“Gender” and “sex” in law and common usage are synonymous. There is no need to change the Principle to refer to “sex discrimination” as people understand what “gender discrimination” is.

Unfortunately, Keir Starmer said today trans women should be banned from women’s prisons and women’s hospital wards.