NHS: Single-sex Spaces for Staff

Question for Short Debate

Asked by

To ask His Majesty’s Government what steps they are taking to ensure all NHS staff have sufficient access to single-sex spaces.

My Lords, if there is any area of the country that is greatly affected by the Supreme Court judgment, it is the NHS: one of the largest organisations in the country, with over a million employees working long hours, at the most horrendous times of the day and night, in difficult, stressful conditions—needing to change into and out of scrubs, and to rest when they can.

I am most grateful to the charity Sex Matters for its briefing on this important issue, and to several other organisations. I am also grateful to noble Lords and noble Baronesses for taking part in this most important debate.

As I understand it—I trust that I shall be corrected if I am wrong—hospitals, as service providers, can provide a mixture of joint, mixed-sex and single-sex spaces for patients, and this is what they do. But this debate is about the provision for staff. As employers, hospitals are required under the Workplace (Health, Safety and Welfare) Regulations 1992 to provide single-sex spaces.

Yesterday, in answer to a Written Question, the Minister in another place, Karin Smyth, said:

“Single-sex spaces are protected in law and will always be protected by the Government. This is the law, and we expect all public service bodies to comply. The recent Supreme Court ruling in the For Women Scotland case has provided much needed confidence and clarity for the National Health Service to adapt its policies to ensure that same-sex spaces are always protected. This includes NHS England’s review of the Delivering same-sex accommodation guidance, as well as providers’ policies on same-sex spaces for staff”.

Well, that is good. She talks about the need for adaptation of policies, because current NHS guidance, which goes back to 2019, says:

“Trans people should be accommodated according to their presentation: the way they dress, and the name and pronouns they currently use”.

The Supreme Court judgment sets out the law on this, not just as it is now but as it has always been. It is clear from that judgment that, where single-sex accommodation is provided, the NHS guidance I just referred to puts the NHS in breach of the law. As we know, the Government have said that they are determined to abide by the law. I break in here to point out how welcome that is and what a welcome contrast it is with the behaviour, on occasion, of the previous Government, who I from time to time supported.

There are several examples of unlawful policies being followed by health trusts. Leeds Community Healthcare’s policy says:

“Trans people are entitled to use single sex facilities in accordance with their gender identity”.

No, they are not. I shall not go through more because others want to speak.

My Lords, it is a pleasure to work with noble Lords today in a slightly different capacity. As I come from a place where we happily worked cross-party, it is wonderful to be here; I bring a slightly different perspective, I think.

The Supreme Court judgment might have brought some aspect of legal clarity, but it has also created significant social uncertainty for trans people. According to my daughter, who is a teacher, it has in many instances brought extreme worry and distress for her pupils; she phoned me at half seven this morning to reiterate that point. In my view, there is a duty of care for His Majesty’s Government to show leadership in helping trans people in the UK to feel safe, no matter the environment or the service, and to feel valued and included.

His Majesty’s Government must engage with the creation of the statutory guidance to ensure that it is fit for purpose, non-partisan and designed to support those who are trying to implement it. They must meaningfully engage with all stakeholders—including, critically, the trans community. In the light of the Supreme Court judgment, do His Majesty’s Government have plans to alter the law so that at least those with a GRC will be regarded as women; and to make provision for those who are non-binary and intersex?

I thank your Lordships for hearing me and for hearing the concerns of my daughter.

My Lords, I thank the noble Lord, Lord Arbuthnot, for tabling this debate. We all know that provisions to maintain relevant spaces as same-sex are particularly important to women because of concerns around safety, privacy, modesty and dignity.

The first point to note for this debate, which is about NHS staff, is that, for workplaces, statutory health and safety regulations require the provision of separate-sex toilets, changing rooms and washing facilities—and have done for several decades. The second is that the Supreme Court’s judgment on 16 April makes it clear that the Equality Act does not give transgender people the right to use opposite-sex facilities. Hence, thirdly, employers who operate policies allowing individuals to use opposite-sex facilities are doing so unlawfully, in breach of their statutory obligations. Can the Minister tell us what the Health and Safety Executive has been doing to enforce the law?

The mystery is why some employers are breaching that clear law and behaving with disdain towards their female staff if they refuse women-only facilities. This is surely the result of a decade of the NHS misinterpreting and flouting the law, as well as the failure by successive Governments to stop it. Unisex alternative arrangements should be available for those who do not wish to use separate-sex facilities relating to their own sex. As the noble Lord stressed, trans employees must not face discrimination or discomfort, but the Supreme Court judgment is the law on access to facilities. As the court made clear, it always has been the law, so why must we spend so much time on this subject?

More importantly, why are women such as Sandie Peggie in Scotland and the nurses in Darlington being put through hell by their NHS employers for having the temerity to request that the law be obeyed and to expect what was once just taken for granted? When the NHS is strapped for cash, as the noble Lord pointed out, why on earth are some trusts prepared to waste money that should go on patients in risking the expense of employment tribunals and other legal actions?

My Lords, the fact that we are here today to discuss this subject, against the background of the Supreme Court’s ruling, is a total indictment of the body politic in this Parliament. I served on the then Equality Bill back in 2010, in the Commons. The words in the Supreme Court judgment, at paragraph 264, say that

“the words ‘sex’, ‘woman’ and ‘man’ … mean (and were always intended to mean) biological sex, biological woman and biological man”.

The fact that the body politic as we have known it for many years was incapable of interpreting its own legislation, with all the toxicity that has gone before us and the pain that has been experienced on both sides of this argument, really is an indictment. That is why I support my noble friend Lord Arbuthnot in saying to the Minister that, now that we have this judgment and now that we, the politicians, have been told by the Supreme Court what we actually did in practice—how dreadful it sounds even to say it—I hope that she will act with all speed to make sure that this judgment is expedited with less pain and less discrimination than we have seen in the past 15 years.

Many years ago, back in the 1970s, I worked in an emergency operating theatre. I have been in theatre when we have resected the overlarge liver of a person who needed and wanted to change their sex. As a Member of Parliament, I dealt with many constituency cases, particularly of trans men who had chosen to change into women. I know about and fully support what has happened in prisons and in women’s changing rooms, particularly women’s changing rooms in hospitals, and the way women feel about it—as a woman, I share that feeling—but, when we talk about compassion, my gosh is compassion going to be needed now to make the changes so that this legislation now applies.

That is the responsibility of the Government. I do hope that we are not going to hear them say, “Oh well, health authorities and hospitals can make their own decisions. It is not a matter for Ministers”. Because of the damage that has been caused by our inability, as politicians, to implement our own legislation, we owe this to all the people out there—particularly women but also trans people. People who make that decision are not all rapists. In my experience, the people I have had to deal with sometimes have really quite heart-rending problems and carry those with them, whatever their choice, for the rest of their life, with a level of anxiety that we have to understand. I hope that the Government understand it.

My Lords, I do not know whether I had met many trans people up until maybe two years ago, but, two years ago, our son started his transition journey—at least, that is when we became aware of it. As a result, this afternoon, I speak to your Lordships first as the parent of a trans child. However, I also speak as a proud feminist—something I have been all my life.

I say this because I believe to the marrow of my bones that my feminism and my belief in the rights of trans people are not, and never should be, in conflict. Even as recently as the 1980s, when I was at university, I was told confidently that feminists were not proper women and that, if I went around being—I quote—“strident about women’s lib”, I would never find a husband. Many of the women I knew started conversations with expressions such as, “Of course, I’m not a feminist, but”. I just do not think those things would be said today. Maybe people have just got used to us feminists and do not fear us anymore in the way they once did just because we lived our lives differently from those who were, at the time, the mainstream.

I speak of this today because, even just as a woman, never mind as a proud feminist, I have experience of being part of a section of society that has not only been discriminated against but for which physical safety is always an issue. Even before the issue of these rights became personal because of our son, I would have argued for the rights of the trans community because discrimination is discrimination. There is no hierarchy of protected characteristics. The rights that I have because I was born a woman do not trump those of trans people any more than my rights as a woman are more important than those of the disabled.

The third capacity in which I speak today is as a lawyer. Here, I am afraid, I must disagree with the noble Lord, Lord Arbuthnot, for whom I have the most immense respect. I deeply regret the interim guidance, or update, put out by the Equality and Human Rights Commission last Friday evening—without having consulted anyone, it appears. What the law requires, which remains unchanged by the Supreme Court judgment, is that decisions should be made on a case-by-case basis as to whether there is a legitimate reason to exclude any section of the community from a particular space or organisation and whether doing so is a proportionate way of achieving that aim. That is what the NHS should do, whether in relation to staff, patients or visitors.

My Lords, until the blink of an eye ago, it would have been considered extraordinary to have a debate about whether staff changing rooms in the NHS should be mixed-sex spaces. Many have been unaware of the challenges, including legal challenges, currently taking place in our health system regarding staff single-sex spaces; we are talking about staff with regard to the Supreme Court case. I am grateful to my noble friend Lord Arbuthnot for bringing this debate forward.

As others have said, the Workplace (Health, Safety and Welfare) Regulations 1992 mandate employers to provide separate facilities for men and women, including changing rooms, for reasons of propriety. These rules and the Equality Act have been misinterpreted by the NHS, particularly affecting female employees, who make up approximately 76% of the NHS staff in England. The situation has been confused by the NHS Confederation guidance, which says:

“In all types of workplaces, trans and non-binary people should be supported to use the bathrooms they feel most comfortable using. At no time is it appropriate to force staff to use the toilet associated with their assigned sex at birth against their will”.

Incidentally—as language matters—sex is not assigned at birth. It is observed or registered. It is not a choice.

The guidance also tells management, senior healthcare leaders and HR directors to take a “zero-tolerance attitude” to transphobia. It is this approach which has led to NHS staff facing workplace discipline for asserting their basic rights to privacy and dignity, as well as to single-sex facilities, at work. Although in Scotland, the case of Sandie Peggie, as mentioned before, is particularly egregious: a nurse with a 30-year unblemished record was suspended by NHS Fife after complaining about having to share a changing room with a trans woman. The case continues but, with a budget black hole of £30 million and a cost to the tribunal that must run into hundreds of thousands of pounds, surely NHS Fife should now accept that NHS staff such as Nurse Peggie deserve privacy, dignity and safety, which the original regulations and the Supreme Court judgment have now clarified as it applies to workplaces.

My Lords, I am involved in the Employment Rights Bill and have been looking to put an amendment to guarantee that all NHS and healthcare employees have the right to access separate-sex changing rooms. Because of the awful experiences of the Darlington nurses and Sandie Peggie in Fife, who were forced to take their NHS trusts to tribunals just to assert their right to get changed in single-sex areas without the presence of male colleagues who identify as women, I had completely forgotten that there are already statutory health and safety laws and regulations that mandate that provision, dating back to 1992. Single-sex changing rooms are also part of NHS England’s good practice guidelines.

It is a story of our times that, right across the NHS, those legal rights have been flouted. The Health and Safety Executive, usually so quick to complain about breaches, has failed to make the law clear or enforce it. Trade unions have stayed shtum. Even worse, it is bad government guidance that has allowed NHS trusts and boards to adopt politicised ideology in the guise of transition at work policies that, I am afraid, have misled trans people by describing privileges as rights.

Now the Supreme Court has ruled with such crystal-clear clarity, you might assume that all private and voluntary organisations, care regulators and, of course, the NHS, would voluntarily want to issue statements making their enthusiastic commitment to implementing the law. Instead, too many are at best fudging and some wilfully misunderstanding the ruling. The problems seem to be that institutions have internalised all these rainbow-badge schemes and the LGBT Consortium and Stonewall’s EDI training, so that unlawful policies are now embraced as kind and progressive rather than unlawful and wrong. Women’s rights have been sidelined as a consequence.

That is why the Government must proactively ensure that NHS bodies act decisively. It should not be left up to Sex Matters to have to write to the likes of Matthew Taylor, CEO of the NHS Confederation and my erstwhile “Moral Maze” colleague, urging him to urgently withdraw guidance that is incorrect and unlawful. Ministers need to help. While the BMA junior doctors have announced that biological sex is scientifically illiterate, I would like to remind them and other trade unions that nursing is a stressful front-line job. What female nurses need is some privacy when getting changed into their uniforms. The last thing they need are some HR apparatchiks denouncing them as bigots, their unions, RCN and Unison, throwing them under the bus, or bosses suspending and shaming them. I think those were the bad old days and I am hoping that, now we have the Supreme Court judgment, the Government will proactively ensure that women’s rights are rightfully restored and nurses can get changed without having to look over their shoulder all the time.

My Lords, I thank the noble Lord, Lord Arbuthnot, for giving us the opportunity to have this important debate. I declare an interest—it is a voluntary interest, so it is not noted by the House registrar. I chair the AMAR International Charitable Foundation. In the last few years, we have given 1 million medical consultations to the Yazidis and 10 million to others. Therefore, 72 primary health centres have been created and I have a deep and sincere interest in the value of nurses, nursing assistants and women health volunteers. I declare that as a real personal interest.

While thanking the noble Lord, Lord Arbuthnot, could I comment that his history is a little out of date? This may be of use to the Minister, because putting this right is going to be a delicate and tricky exercise. In fact, this goes right back to the 1990s, when all Governments were committed—both sides—to single-sex spaces for patients and nurses throughout our hospital systems. That was building absolutely brilliantly until 2008, when very surprisingly something came out from inside the NHS saying, “Oh dear, we are going to be asked to have single-sex spaces and make women nurses-only protections and we are not going to do that. What are we doing to do?” I happened to see that email. That was when this started to be diverted in 2008.

In 2014, the health Act that offered single-sex recognition throughout the NHS was already being undermined by Annex B—which, after all, is only a comment at the end of the annual nursing statement, yet it was given dominance over an Act of Parliament. I can give the detail of that, obviously. My first request is that that particular aspect should be looked at, because an Act of Parliament should surely be dominant, not an additional and internal measure within the NHS—as I would say of any other government department that was allowed to divert and send it into a different channel.