Trans women will no longer be placed on female-only wards under new NHS England guidance on single-sex spaces.
The new rules, published on Thursday, mean that single-sex wards, toilets and changing rooms will now be used by people based on their biological sex, not their gender identity.
The guidance states that trans people should be “accommodated in line with their biological sex” while ensuring their clinical needs are met and their “privacy, dignity and safety are maintained”, along with other patients sharing their accommodation.
It adds that in cases where clinical needs and same-sex accommodation requirements cannot both be met, clinical needs are the priority.
Updated guidance for NHS England staff has also been published, stating that all organisations should carry out an audit of their provision to ensure it protects the “privacy, dignity and safety of all staff”.
It states that in NHS trusts with mainly single-sex facilities, “suitable and accessible alternatives, such as single‑occupancy or mixed-sex facilities with individual lockable rooms, can be provided”.
Previous NHS England guidance said patients and staff could be accommodated on wards or use facilities based on their gender identity.
In a joint statement, TransActual and Trans+ Solidarity Alliance said the guidance would “not survive contact with reality in resource-strapped hospitals and will create unworkable operational challenges”.
“This NHS guidance emphasises clinical judgment as the priority over blanket exclusion, but leaves individual healthcare professionals unclear on how to safely look after trans patients,” they said.
“Forcing trans people into spaces for our sex assigned at birth will never be the most clinically appropriate decision, and would push trans people away from accessing care.”
They added that “the government failing to get a grip of this legal mess was sadly putting politics over patient care”.
The guidance has been updated after last year’s supreme court ruling that stated the terms “woman” and “sex” in the Equality Act referred only to a biological woman and to biological sex, and did not include transgender women with gender recognition certificates.
The Equality and Human Rights Commission (EHRC) code has already been revised to confirm a service must be used on the basis of biological sex for it to be classed as single-sex under the Equality Act.
Maya Forstater, CEO and co-founder of the charity Sex Matters, said the policies “represent a momentous shift back to reality”, but she was “concerned that NHS England has not said how rules based on biological sex will be implemented”.
She also criticised the fact the guidance had been published 18 months after the supreme court judgment, saying it had initially been promised “within weeks”.
She cited the case of the female nurses at Darlington memorial hospital who won an employment tribunal case in January after being forced to share single-sex changing rooms with a trans colleague.
The tribunal found that the nurses faced “a hostile, intimidating, humiliating and degrading environment” at work and were told to “broaden their mindsets” when raising their concerns.
Bethany Hutchison, who led the claim, said she welcomed the new “clear and necessary guidance from NHS England”.
“The test now is whether NHS trusts will actually follow it. The Darlington nurses should never have had to take their own employer to court to secure privacy, dignity and lawful single-sex facilities,” she said.
“Enforcement cannot continue to depend on the courage and personal sacrifice of individual nurses.”
