NHS chiefs have been forced to scrap controversial ‘pro-trans’ guidance which allowed people to use toilets and changing rooms based on their self-identified gender – after the Supreme Court ruled such advice was effectively unlawful.
The NHS Confederation, which represents health trusts across the country, has quietly withdrawn the document from its website after judges confirmed the term sex in the Equality Act refers to biological sex, not gender identity.
The landmark ruling, made in April, means that trans women – who were born male – must now use male toilets and changing rooms, contradicting earlier guidance used across much of the public sector, including hospitals.
The withdrawn guide had instructed NHS staff to allow trans and non-binary people to access facilities in line with their gender identity, not their sex at birth.
But campaigners and women’s rights groups have slammed the policy as dangerous, and are now demanding a full apology.
Speaking to The Telegraph, Maya Forstater, chief executive of the campaign group Sex Matters, said: ‘Its guidance encouraged a hostile, humiliating and unsafe environment for NHS workers and patients. It was published with much fanfare but withdrawn by stealth.
‘NHS Confederation should now apologise publicly for undermining women’s rights and the culture of care. It should also undertake to contact all NHS trusts, telling them that its guidance was flawed and that policies based on it should now be torn up.’
An inclusive changing space sign at an NHS facility, allowing trans women to use the women’s room
Activists celebrate after hearing the outcome of the Supreme Court’s ruling on how to define a ‘woman’
Women’s rights charities claim the guidance may have contributed to shocking workplace decisions, such as the disciplining of nurses in Darlington who had called for single-sex spaces to be respected.
The original guidance, which has now been scrubbed from the NHS Confederation’s website, stated: ‘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.’
It also urged NHS leaders to adopt a ‘zero-tolerance attitude’ to transphobia, and had promoted trust-level policies such as that from Leeds Community Healthcare NHS Trust, which stated: ‘You are entitled to use single-sex facilities in accordance with your gender identity.
‘For non-binary people, this may mean using gender-neutral or accessible facilities, or using a combination of different facilities. A non-binary person can choose to use facilities they are most comfortable using, if gender neutral facilities are not present.’
A spokesman for the NHS Confederation confirmed the guidance had been withdrawn: ‘We have withdrawn our guide from our website as elements of it were dated following the ruling of the Supreme Court in April and interim guidance from the EHRC.
‘Our intention remains to provide our members with information that helps them best support their staff and patients, and so 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.
Transgender women should not be allowed to use female toilets, according to the Government’s equality watchdog. Pictured: File photo
For Women Scotland directors Susan Smith (left) and Marion Calder (right) celebrate the landmark ruling
The Equalities and Human Rights Commission (EHRC) issued itsguidance to charities and public sector organisations following the Supreme Court’s ruling that trans women – men who identify as female – are not women under the law. Pictured: Protesters gathered in support of transgender rights following the ruling
‘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.’
The spokesman added that the guide wasn’t removed immediately after the ruling, as the group initially chose to flag up the outdated elements online — but later decided it was best to remove it altogether to avoid ‘confusion.’
Ms Forstater didn’t hold back in her criticism of the document: ‘NHS Confederation’s now-withdrawn guidance on trans issues is among the worst we have seen. Not only did it encourage hospitals to break the law on workplace facilities, it directed NHS managers to regard anyone who correctly cited the law as a ‘transphobe’ and to treat them with a ‘zero tolerance’ approach.
‘This is the approach that led to NHS staff such as Sandie Peggie and the Darlington nurses being disciplined in their workplaces simply for asserting their right to safety, dignity and privacy in single-sex facilities.
‘Hospitals should always have been places where staff understood that sex matters. But NHS Confederation has been dragging its feet since the Supreme Court judgment was handed down.’
The NHS is now under pressure to issue updated guidance in line with the new legal ruling.
Health Secretary Wes Streeting has said he wants revised advice in place by the summer.
Meanwhile, other public bodies have already begun making changes including the Football Association, which has announced trans women will now be banned from competing in women’s football.
