(1 week ago)
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Lord Arbuthnot of Edrom
To ask His Majesty’s Government what steps they are taking to ensure all NHS staff have sufficient access to single-sex spaces.
Lord Arbuthnot of Edrom (Con)
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.
One issue is the speed of the change that must now happen. NHS England says that it is reviewing current guidance on same-sex accommodation and, as part of this process, will consider all relevant legislation and the ruling. That sounds a rather leisurely process. How long will it take to adjust this? Specifically, will the Government now contact all health trusts, asking them for an urgent commitment to comply with the law and saying that they need to tell their staff that it is illegal to allow biological men into single-sex female spaces?
A failure to act with speed would lay health trusts open to litigation involving harassment and discrimination. Some of those legal cases, of course, are already under way and will be affected by the judgment, such as Sandie Peggie’s case in Fife—which I know is not within the Minister’s remit—the Darlington nurses and Faye Russell-Caldicott’s case. When money in the NHS is in short supply, as it always is and always will be, we should not be spending it on damages for this sort of thing.
The key issue in all this is that the provision of single-sex spaces is of particular importance to women. This is not surprising, since one woman in four has been raped or sexually assaulted as an adult and 98% of sex crimes are committed by biological men. Victoria McCloud, the retired judge who is trans and says they are taking the Government to the European Court of Human Rights on this issue, says that it is not safe for women to use men’s toilets. It surely follows that it is not safe for biological men to be in women’s toilets.
The solution to this is definitely not that all accommodation should be changed to neutral-sex accommodation. In swimming pool and sports centre changing rooms—a different though related topic—nearly 90% of sexual assaults on women occur in unisex facilities. I do not suggest or believe that this threat comes from trans women, but it would not be progress if unisex facilities became the primary type of changing provision.
An issue that we need to face is enforcement. How will biological men be stopped in practice from using female-only toilets and changing rooms? Asked if the latest guidance meant transgender people would be banned from the lavatories of the gender they identified as, Pat McFadden MP said,
“look, in reality, when you say ban, am I going to be standing outside toilets? I’m probably not. There isn’t going to be toilet police, but that is the logical consequence of the court ruling and the EHRC guidance”.
I think he belittles the effect of law in this country. We want to do the right thing, and by and large we do and will, but it will no longer be possible to be sued for complaining that there is a biological man in a women’s changing room.
I do understand how difficult this announcement of the law will be for some. It will require some biological men who are trans or cross-dressers, and who have previously been using female toilets and changing rooms, now to use male toilets and changing rooms. For some that will cause real problems, but it has to be balanced against the real problems that have previously been created by the opposite practice—that of ignoring the biological sex in favour of the chosen gender identity. The Supreme Court’s judgment was going to cause such problems whichever way it went.
I welcome the clear statement in the judgment of the absolute prohibition of discrimination against trans people on the basis of existing law. All people, whatever their gender identity, should be treated with respect under the law. We will get through this with the kindness, tolerance and respect for others, and for the law and the judges, which have been the hallmark of our country for generations, but which have sometimes been lacking in the debate on this subject. It is time for that to change.
Baroness Griffin of Princethorpe (Lab)
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.
Baroness Ludford (LD)
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?
Maybe a clue comes from the motion passed at the British Medical Association’s resident doctors’ branch conference last Saturday; apparently, junior doctors are now called “resident doctors”. This motion not only condemned the Supreme Court’s judgment but called it “biologically nonsensical” because a
“rigid binary has no basis in science or medicine”.
These people are doctors. This attitude could harm not only women and men being treated by such doctors but trans women and trans men, whose biology it is crucial to know for many, if not most, healthcare procedures. This debate is about staff but, if doctors are prepared to deny the rights of their female colleagues, they will certainly not care about patients.
There is widespread bemusement about why women keep having to justify what was once considered ordinary and banal and was accepted in society. For NHS staff, the regulations are clear cut. For patients, the Government need to cancel the famous Annex B and get on with giving patients the single-sex services that they want, alongside decent and fair treatment for trans patients.
Baroness Browning (Con)
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.
Baroness Levitt (Lab)
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.
The EHRC interim guidance contains inaccuracies and misstates the law. It has marginalised and frightened the trans community. That should be a matter of real concern to any of us who care about the rights and safety of everyone in our society.
Baroness Jenkin of Kennington (Con)
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 Peggy, 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 Peggy deserve privacy, dignity and safety, which the original regulations and the Supreme Court judgment have now clarified as it applies to workplaces.
In Darlington, nurses were forced to share the women’s changing room with a male nurse who identifies as a woman. How astonishing it was to hear that, when they raised their concerns, the Darlington nurses were told to “be educated” and to “broaden their mindset”. This focus has meant that sexual harassment in the workplace has been ignored. Managers are no longer offered training on the issues of abuse, which women have traditionally experienced in the workplace. Female staff are leaving as a result, as their concerns, including around bullying and intimidation, are no longer taken seriously.
The current guidance encourages NHS employers to uphold policies that create an intimidating, hostile and difficult environment for staff who do not wish to share single-sex spaces with members of the opposite sex. I ask the Minister to join with Sex Matters, which has written to the chief executive of the NHS Confederation, in urging it that its current guidance is unlawful and should be withdrawn as a matter of urgency.
Baroness Fox of Buckley (Non-Afl)
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.
Baroness Nicholson of Winterbourne (Con)
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.
My second point is that I believe that the Minister will wish to review LGBTQ policies. I know well and highly admire Dr Michael Brady, who has been the LGBTQ health adviser. He is a very wonderful, attractive and intelligent man, who has been pushing his cause very hard indeed. But I wonder whether that is a real priority to look at and, perhaps, change, because if it is not, nothing else will shift with any speed at all.
I thank the Minister and the other speakers. This is a very tricky, embarrassing and difficult subject, because so many people feel so strongly that they have been personally affected. I hope that we will all work together to try to make this as good as possible an improvement and recognition of the Supreme Court judgment.
Baroness Kennedy of The Shaws (Lab)
Colleagues, I apologise that I was a minute or two late. Unfortunately, I am disabled at the moment, and everything takes so much longer for me. As soon as I saw that it was a few minutes to 1 pm, I tried to make my way here in time.
I start by saying that I want to endorse what the noble Baroness, Lady Levitt, said. Like her, I have been a feminist all my life—but I am a lawyer, and I am here talking as a lawyer. I actually did the first international case representing a trans woman in relation to discrimination that she had received. As a result, I have had a number of cases since of some significance, relating to the violence that is experienced by trans women, also at the hands of men. Let us be very clear that this is not something that is experienced simply by biological women. The perception of womanhood itself can be enough to enrage certain men.
The judgment makes it clear that the decision was limited to the question of statutory interpretation and that it was not involved in making policy—so the difficult business of policy follows. But the judgment also made it clear, and it was emphasised—although unfortunately this has been lost in some of the utterances by people who should have known better—that its conclusion
“does not remove or diminish the important protections”
that there have to be for trans people and which are available to them under our own legislative commitments. The Supreme Court would probably be rather alarmed at the triumphalism that there seems to be about its judgment.
The Equality and Human Rights Commission is required to publish proposals before issuing a new code of practice and to consult such persons as it considers appropriate. I hope that is going to be really broad, because we have not seen clarity brought by this. We have seen a great deal of dissension and a great deal of fear. I have been contacted by many trans women to say that they felt comforted by some of the legislation that there has been and that they are now full of uncertainty: “What happens if I am caught short at Waterloo station on my way home from work, wearing my female business suit?” That applies especially when we are talking about older women—and we all know that access to facilities can be so important. I am concerned about the consultation process, and I really want to see this being done in the health service as well. There should be opportunities for individuals and organisations to have input into that process—not just the loud voices that we hear and not just those who seem to be very partisan.
One of the things that came with feminism was a belief in our humanity and in the treatment and compassion that we should expect of each other. All that seems to be lost in the toxic debate that is currently taking place. I urge this on the House. I see that the chair of the Equality and Human Rights Commission is here, and I would like to hear her being much more compassionate in how she discusses the rights of the trans community.
Baroness Burt of Solihull (LD)
My Lords, we are in a mess. We all care about trans people, and we all care about biological women and all the problems that women have suffered over the years. But even as we speak, senior legal officials and estates and facilities managers are racing to draw up proposals for how hospitals, community care centres and GP practices should operate their facilities according to the rules of the Supreme Court. We could, as an interim, ask trans people simply to use a disabled toilet, but all services need to think more deeply about the needs of trans people and cis women—their human rights must be upheld.
What about changing facilities? This was the basis of the much-publicised Darlington case, which was referred to by the noble Lord earlier. That may be trickier and more expensive to solve, where changing facilities have to be allocated by biological sex. From my knowledge of trans friends—who, in the main, just want to quietly get on with their lives as women—the requirement to open changing facilities, and therefore to out themselves, would fill them with distress. That is before you start talking about confronting rights to privacy and dignity. Much has been made of the fear that trans people are experiencing. We do not want to create situations that embarrass, humiliate, out, and create fear in trans people. Their dignity, privacy and human rights must be protected.
There is a little pub just down the road from where we live that has three toilets, labelled “men”, “women” and “inclusive”. Everyone, I hope, will feel comfortable using the “inclusive” option—I know I do. It has the advantage that no one has to out themselves just to go to the loo. There is also the situation of non-binary people, where sometimes it is hard to distinguish the sex of the person. Many trans women accomplish their transition with aplomb and spend their lives as women. I have a friend whom I knew for 10 years before I found out that she was trans—it did not make a blind bit of difference, obviously—but what would happen to them if they were forced to use a men’s toilet? It does not bear thinking about.
I ask that we keep these things in proportion, because half of 1% of people in this country—men or women—is trans. Perhaps we could bear that in mind.
Lord Kamall (Con)
My Lords, I thank my noble friend Lord Arbuthnot for bringing this important debate, and all noble Lords and noble Baronesses who spoke. It is fair to say that this topic has generated a variety of strong opinions on all sides, both in this House and outside. Whatever our opinion, I hope that, in this House and elsewhere, we can approach such a discussion on single-sex spaces and single-sex accommodation with humanity and civility, respecting the dignity of individuals while recognising the concerns that have been raised on all sides of the debate.
In considering the recent Supreme Court ruling on the definition of a “man” and a “woman” in the Equality Act 2010, it is important that we are clear about what it says, so can I check the Government’s understanding of that? Is it true, or is it interpreted, that the judgment defines only a “woman” and a “man” so far as they relate to that specific piece of legislation? Is it correct to say that, although it may or may not set a legal precedent, it does not provide definitive definitions across all areas of law? Can the Minister clarify that?
Before the Supreme Court ruling, the guidance for NHS hospitals required them to accommodate patients based on their stated gender: people were not required to present a gender recognition certificate to demonstrate their preferred gender. Since the Supreme Court ruling, as other noble Lords have said, the Equality and Human Rights Commission has updated its guidance on the provision of single-sex spaces and has specifically stated that the NHS has to update its policy. We looked for information on the NHS website and it is not available at the moment. Can that be taken as a sign that the department or NHS England is updating that policy? That is my second question to the Minister: is the NHS currently updating policy on who can be accommodated in single-sex wards in hospitals? If it is doing so, can she share with the Committee any details as to what that updated guidance might look like, or is it too early to say? Maybe her officials can help.
The real issue here is how the NHS can ensure that it strikes a careful balance between complying with the Supreme Court judgment and the guidance from the EHRC protecting the rights of women, and ensuring that all patients, whether they are transgender or not, are treated with the dignity they deserve. I look forward to the Minister’s response.
Lord Arbuthnot of Edrom (Con)
Before the Minister stands up, we have the benefit of having the chair of the EHRC in the Room with us. I wonder whether it is your Lordships’ wish that we hear from her.
The Deputy Chairman of Committees (Viscount Stansgate) (Lab)
My Lords, I am in the hands of the Committee, but the fact is, as Members will know, people are entitled to ask to speak in the gap, but the gap had already been passed by the time the Member concerned sought to do so. I can say no more at this stage.
Baroness in Waiting/Government Whip (Baroness Jones of Whitchurch) (Lab)
My Lords, this is a timed debate and people have quite rightly put their names down for it. As the Deputy Chairman of Committees said, the gap has already been passed and I suggest that we move on to hear from the Government Front Bench.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I thank the noble Lord, Lord Arbuthnot, for bringing this issue before the Grand Committee, and all noble Lords, particularly the two Front-Bench spokespersons, for the tone, which I also wish to impart to this important debate. A noble Lord said that we want to do the right thing, and I endorse those words. We heard a call for kindness, compassion and common sense throughout; again, that is absolutely the hallmark of how the Government are approaching this. Last but not least, I thank my noble friends Lady Griffin and Lady Levitt, who were kind enough to bring their own experiences and that of their families into the Room. It is always so important that we remember that we are talking about people here.
I say at the outset that the Government believe that NHS staff deserve to be treated with dignity and respect at work. This includes providing single-sex spaces. The noble Baroness, Lady Fox, set out that position very clearly. The Supreme Court has now ruled that sex means biological sex in the Equality Act, and with regard to the legal definition of a woman for its purposes. I heard the frustration of the noble Baroness, Lady Browning, that this was required, but the ruling brings clarity and confidence. It says to service providers and others that they must follow the judgment. That is the guiding light: this is the law, and we expect all public service bodies to comply with it. I can assure noble Lords that the Government are looking at ways to support public bodies in doing so.
I want to state clearly that trans people must have access to the services that they need in the broadest sense, and that they are also provided with protections under equality law. Access will need to be in line with the law.
I heard my noble friend Lady Smith of Basildon, the Lord Privy Seal, say on BBC Radio 4 recently that there is nothing that cannot be dealt with, with kindness, compassion and a bit of practicality and calmness—I emphasise that last word. In a practical sense, dealing with matters of access, many examples of which have been raised in this debate, may not be the same in all circumstances, and relevant organisations will need to look carefully and sensitively at these issues. I appreciate that implementing changes may generate some operational challenges and have financial implications, but, in my view, it is not beyond the ability of the NHS to find a path through that resolves these issues in a way that ensures the safety and dignity of patients and of staff. Noble Lords have rightly paid tribute to the work that staff do, and we are absolutely here to respect and support them.
The Equality and Human Rights Commission has committed to issuing a new statutory code of practice, and all service providers would be expected to comply with it. On the EHRC, which my noble friend Lady Levitt in particular drew attention to, it is, as we know, an independent body. To remind us, it has
“the responsibility to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote the human rights of everyone in Britain”.
As I mentioned, in the light of the judgment, the EHRC has committed to produce an updated code of practice by the end of June for ministerial approval—I heard many calls for ministerial involvement, and I hope that that response will be helpful—following a public consultation. The EHRC update that noble Lords have referred to is interim and provides its reflections on the Supreme Court ruling. I wish to emphasise to my noble friend and noble Lords that it is not official guidance at present, but I reiterate that employers and other duty bearers have to follow the law and should take appropriate specialist legal advice where they need to. I hope that will be helpful, and I am sure that my noble friend will engage in the consultation on this important matter.
The noble Lord, Lord Arbuthnot, and the noble Baronesses, Lady Ludford and Lady Jenkin, referred to the Darlington nurses. I am sure that noble Lords understand that I will not go into the detail of that specific dispute, as it is an ongoing legal matter, but I can confirm that the Secretary of State, Wes Streeting, met with representatives last year and has been in further contact with them since to understand any further concerns. As I have already said, the Government have called for, and continue to call for, the protection of single-sex spaces based on biological sex. The ruling provides added certainty—I will put it that way to the noble Baroness, Lady Browning—on this matter, and Darlington Memorial Hospital, along with all other public service providers, must comply with the ruling.
The noble Lord, Lord Arbuthnot, reference to the matter of single-sex spaces for patients, although the debate relates to staff. The core principle governing this issue is that providers of NHS-funded care should have a zero-tolerance approach to mixed-sex accommodation, except where it is in the overall best interests of all patients affected. The reason for saying that is, of course, that there can be times when there is so much pressure on accommodation that there has to be common sense and flexibility in the interim. This aligns with the NHS constitution, in which the NHS pledges that patients admitted to hospital
“will not have to share sleeping accommodation with patients of the opposite sex”.
Fundamentally for me, as the Patient Safety Minister, this issue affects some of the most vulnerable patients, such as those in mental health settings. It is imperative that we get this right to tackle sexual harassment and violence in hospital care settings, for which we also need zero tolerance.
The noble Baroness, Lady Browning, the noble Lord, Lord Arbuthnot, and others raised the pace of change. NHS England is revising its guidance in line with the ruling, and this will be done in a way that respects the dignity and safety of trans patients, as well as of women. I make this point particularly as the noble Baronesses, Lady Ludford and Lady Nicholson, referred to guidance; this is how it will be dealt with. The intention, confirmed by the Secretary of State, is that the NHSE guidance will be published before the summer. I assure noble Lords that we will work with NHSE on this, and that any guidance will need to align with the EHRC’s statutory code of conduct. Noble Lords will understand that a number of points are coming together.
I would very much like to pick up some of the points that noble Lords were good enough to raise. My noble friend Lady Griffin asked about those who have a gender recognition certificate. Trans people are protected from discrimination and harassment in the Equality Act. That does not change. Those with a GRC are still recognised in their acquired sex and gender in other circumstances, unless specific exceptions apply.
The noble Baroness, Lady Ludford, asked about the Health and Safety Executive in respect of employers that may be operating unlawfully. I simply emphasise that all providers have to follow the Supreme Court ruling.
The noble Baroness, Lady Jenkin, referred to NHS Confederation guidance, and there was reference throughout, in addition to the Darlington nurses, to the Scottish case of Sandie Peggie. I know noble Lords understand that it is not possible for me to comment on that case. However, on guidance, the noble Baroness, Lady Jenkin, simply demonstrated the need to get language right throughout. That is exactly what will happen.
My noble friend Lady Kennedy raised a number of cases of violence towards trans women, often by men. How we protect trans people from hate crime is a very important point that we must be very aware of and alert to, and act on. Strong protections remain in place for all communities to live free from discrimination. There is zero tolerance for hate crimes of any kind, and we will support the police in taking the strongest possible action against perpetrators of these abhorrent offences.
The noble Baroness, Lady Burt, and my noble friends raised concerns about the fear that trans people are facing. There are rightly laws in place to protect trans people from discrimination and harassment. I want to acknowledge—the noble Lord, Lord Kamall, made this point well—that, although those laws are in place, I am absolutely aware of their fear, uncertainty and concerns. This is not a situation that we would wish to continue; dignity and respect for everyone must run throughout.
The noble Lord, Lord Kamall, asked what the guidance on single-sex wards might look like. We will update those policies, and their detail is receiving a lot of attention. I cannot comment on the specific details, but I look forward to the noble Lord and your Lordships’ House being made aware of what is in that guidance. We are always open to improvement.
I thank noble Lords for their contributions and the noble Lord, Lord Arbuthnot, for instigating this debate. I look forward to working on it further.