NHS hospital bosses are accused of getting the law wrong in their controversial gender policies

Hospital bosses have been accused of getting the law wrong in their controversial gender policies.

Campaigners say NHS trusts have misinterpreted the protections afforded to transgender people, ignored special exemptions that apply in the health system and failed to take into account women’s rights or ‘gender-critical’ beliefs.

The most important piece of legislation cited by health chiefs in their guidelines for transgender patients and employees is the Equality Act 2010, which prohibits discrimination against anyone undergoing or even proposing gender reassignment.

However, critics say that while ‘gender reassignment’ is one of the nine protected characteristics in the groundbreaking anti-discrimination law, ‘gender’ is too and therefore women’s rights should also be taken into account.

Another protected feature is ‘belief’ – but none of the dozens of NHS hospital policies studied by The Daily Mail indicate that people, including staff and patients, have a right to express gender-critical views, such as saying that people don’t like sex can change.

In addition, trusts seem to interpret the anti-discrimination law to mean that transgender people should be treated as if they had changed their sex.

Some have even falsely claimed that “gender” is a protected characteristic, when in fact the law uses the term “gender”.

The Equality Act also specifically includes the provision of health care as an area where same-sex services can be legally provided, which some commentators say should mean that transgender women should not be allowed access to women-only wards.

The explanatory memorandum to the legislation lists exceptions where “services for single persons are permitted”, including when “they are provided in a hospital or other place where users require special attention” and “they can be used by more than one person and a woman can object to the presence of a man (or vice versa)’.

Heather Binning, founder of Women’s Rights Network, said: ‘The impact on female staff should not be underestimated when colleagues of the opposite sex identify themselves in their toilet and changing areas.

‘The same-sex exemptions in the Equality Act 2010 allow men to be excluded from female areas regardless of how they identify and whether or not they hold a Gender Recognition Certificate.

“Again, we have guidelines that repeatedly ignore or misrepresent the Equality Act regarding same-sex exemptions, and many even have the wrong protected characteristics.”

The other law mentioned in most NHS policies is the Gender Recognition Act 2004, which legally allows people to change their gender from male to female or vice versa on birth certificates and thus marry into their new identities.

Hospital trusts are warning staff that part of the legislation makes it a criminal offense to “out” a transgender patient without their consent.

But most policies do not state that there is a specific healthcare exception, stating that it is not a criminal offense to disclose protected information if it is “made for a healthcare professional” or “made for medical purposes”, including providing care and treatment.

Maya Forstater, executive director of campaign group Sex Matters, said: “Combined with a total lack of regard for other people’s rights and other protected characteristics, especially gender and creed, it means they end up with this crazy policy that assumes that one’s gender should be kept confidential in a healthcare setting, and that they should be treated as the opposite gender upon request – even if they are only ‘non-binary’ – but wish to have access to facilities of the opposite gender.’