NHS body revokes guidance advising hospitals to allow trans people to use chosen bathrooms

An NHS body has been criticised after it quietly withdrew guidance advising hospitals to allow trans people to use bathrooms and changing rooms of their choice.

The NHS Confederation – which represents NHS trusts across the UK – confirmed to The Independent that it had removed the guidance from its website as it became “dated” after April’s Supreme Court ruling.

The judgment found that the terms “woman” and “sex” in the Equality Act 2010 refer to a biological woman and biological sex, sparking disputes on how Britain should treat its equality policy.

In the weeks after the ruling, the Equality and Human Rights Commission (EHRC) issued interim guidance which stated that trans women “should not be permitted to use the women’s facilities” in workplaces or public-facing services such as shops and hospitals. The guidance is being legally challenged by trans-rights groups.

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The NHS Confederation said it had withdrawn its previously trans-inclusive advice and will issue new guidance when the EHRC updates its official Code of Practice.

But trans rights groups have warned guidance on access to single-sex spaces is currently a legal “minefield”.

“The Supreme Court decision about the Equality Act doesn’t mention toilets – not even once – and their provision is governed by separate legislation,” founder and executive director of Good Law Project, Jo Maugham KC, told The Independent.

“What the Supreme Court was very careful to say is that its judgment about the meaning of ‘woman’ was solely about that word in the Equality Act. The ‘toilets question’ will be determined in judicial review proceedings that Good Law Project is filing today.

“For the NHS (or any other service provider) to take a position before the outcome is known is to invite lawsuits against it and risk wasting money that ought to be spent on patient care in the pursuit of ill-advised culture wars.”

TransActual, an organisation that supports the rights of trans people, said the development highlights the confusing implications of the ruling.

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“This decision may – or may not – be required as a result of the recent Supreme Court ruling,” a spokesperson said.

“However, what appears abundantly clear, based on advice from multiple lawyers and experts in this field, is that the supposed ‘clarity’ welcomed by the prime minister shortly after the ruling is, itself, in need of some clarification.

“The law, based on a narrow interpretation of the Equality Act, may support this action. Equally, any future challenges on human rights grounds, which were not considered by the Supreme Court, may lead to a different outcome. It is a minefield. Organisations are damned if they act; damned if they do not.

“We sympathise with the NHS Confederation and the position they find themselves in. Nonetheless, we believe they have reached the wrong conclusion – and that will, in turn, lead to significant harm to trans people needing medical care, as they now put off, or refuse treatment that may require a hospital stay.”

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The NHS Confederation – which does not set official NHS policy – said its intention remains to provide its members with “information that helps them best support their staff and patients”, as it confirmed it had taken its previous guidance down.

A spokesperson said: “We will update and reinstate our guide as soon as the EHRC has updated its Code of Practice, which will need to be approved by the UK government, and when NHS England has then updated its guidance for what the changes mean for NHS organisations.

“The withdrawal of our guide does not change our explicit commitment to support our members to reduce the unacceptably high levels of bullying, abuse and discrimination at work that trans and non-binary staff and patients face.”

On Monday, a hearing in a case against the EHRC over its consultation period for guidance in the wake of the Supreme Court ruling is set to go ahead.

Human rights group Liberty is arguing the equalities watchdog had breached its statutory duties by implementing a six-week consultation period rather than a 12-week one.

The EHRC will issue official post-ruling guidance after the consultation period.