The NHS Confederation is “the membership organisation that brings together, supports and speaks for the whole healthcare system in England, Wales and Northern Ireland”. It is a charity for “the relief of sickness and the preservation and protection of public health”. Its annual income of over £17M is derived overwhelmingly from the public purse in the form of grants, contracts and membership subscriptions. It is bound by the public sector equality duty imposed by s.149 of the Equality Act 2010, so along with its ordinary duties as an employer it must have “due regard” to the need to eliminate discrimination on grounds of all nine protected characteristics. It must “foster good relations” between different groups.

This guidance encourages NHS employers to break the law

Last week, the Confederation in collaboration with the LGBT Foundation published a guide called, “Leading for all: supporting trans and non-binary healthcare staff”.

The guidance is legally flawed in numerous ways. It provides a vivid illustration of the kind of confusion about sex and the law which the amendment to the Equality Act proposed by Sex Matters and the subject of this afternoon’s Westminster Hall debate aims to clear up.

On page 38, the guide gives an example of how to collect demographic monitoring data. Its proposed “best practice” model asks, “Which of the following best describes how you think of yourself?” giving the options “female”, “male”, “non-binary” and “in another way”. Any organisation using this will fail to collect accurate data about the sex balance of its workforce. This signals a lack of commitment to sex equality that could seriously damage its ability to defend a sex discrimination claim. As a respondent to the survey that informed the report is quoted as saying (p.50), “if we’re not counted, we don’t count”.

The chapter on “Inclusive facilities” advises that “trans and non-binary people should be supported to use the bathrooms [i.e., toilets] they feel most comfortable using”. The only situation in which the authors appear to think that there might be a problem with letting staff use whichever single-sex facilities they prefer is where communal showers are provided; cubicles are treated as a complete answer to any privacy concerns.

This encourages NHS employers to break the law. The Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide separate toilet and washing facilities for men and women, except where those facilities are in the form of separate, fully-enclosed single-occupancy rooms. If any man who says he is a woman is allowed to use the ladies’, it is no longer single-sex. The practical need should be obvious: many women will not want to use the toilet or rustle the packaging of sanitary protection in the hearing of a male colleague, less still wash their hands (or underwear) after a menstrual flood in the next hand-basin.

Such a policy will also discriminate indirectly against women, contrary to the Equality Act: it will put women at a particular disadvantage compared to men, both because they are far less likely to wish to use the gents’ than the opposite, and because women are — and have reason to be — more afraid of men than men are of women. It will be impossible to justify as a proportionate means of achieving a legitimate aim because it involves breach of the Regulations.

The next page is about what to do when patients request same-sex care. It starts with a garbled account of the “occupational requirement” provisions at schedule 9 to the Equality Act, attributing a healthcare provider’s power to accommodate a patient’s request for same-sex care to those provisions. Schedule 9 does not provide a general permission to discriminate against an employee where there is a “genuine occupational requirement” for that discrimination; it provides a much more limited permission to confine certain jobs to people with (or in the case of gender reassignment, without) a protected characteristic where there is an occupational requirement for that restriction.

To touch someone intimately without their consent is a serious assault

At this point, the guide betrays a fundamental misunderstanding of the nature of discrimination. There is no express permission in the Equality Act for employers to discriminate against their staff by withdrawing certain duties from them, where necessary, to protect the dignity and privacy of service-users. There is no need for any such permission, because not being required to undertake such duties for that reason is not discrimination. To establish discrimination, a claimant has to show that he or she has suffered a detriment. An unjustified sense of grievance is not enough: see Barclays Bank plc v Kapur (No 2) [1995] IRLR 87.

It is difficult to imagine a sense of grievance more unjustified than any affront felt by a man whose employer refuses to let him undertake intimate care of a woman who does not consent to receive it from a man. It makes no difference if the man in question says he is a woman, dresses as a woman, believes himself to be a woman, or even holds a government certificate declaring him to be a woman. The question of consent is for the female patient in this scenario alone. Any man who positively wishes to provide such care despite the absence of consent is unfit for any work with vulnerable patients.

The guide goes on to say that patients have no right to know the sex of a healthcare worker, and that a patient cannot request a different member of staff where there is no clear clinical benefit. This too betrays a dismaying lack of grasp of questions of consent. To touch someone without their consent (sometimes implied) is assault. To touch someone intimately without their consent is a particularly serious assault. Subject only to mental capacity, any patient can validly withhold consent to any medical procedure for any reason, good or bad.

Whether alternative care can be offered may well be influenced in part by whether the reason is good or bad, but a preference for same-sex care should not be questioned or subjected to a test of “clear clinical need”. Women will have their own reasons for such a request. To ask them to justify it by discussing their religious or cultural beliefs, or their history of sexual violence, is also likely to cause unjustifiable indirect discrimination on grounds of sex at least, and often race and/or religion, too.

These are just a few of the most egregious errors in a document that is legally illiterate from beginning to end. Worse, it evinces a dismaying contempt for women’s privacy and dignity.

Amusingly, the guide contains advice about what to do when facing “strong backlash to visible allyship”. For the benefit of any senior Confederation executive reading, it’s on page 31.