Patients have a right to know a doctor’s sex

This week an Employment Tribunal has heard evidence that a trans doctor would treat a female patient who has requested female only care, having previously described the concept of biological sex as “a nebulous dog whistle”. The doctor has also claimed to be a trans woman who is biologically female. In a tense exchange between Dr Beth Upton, who is male but identifies as a woman, and Naomi Cunningham, lawyer for Sandie Peggie, a nurse suing NHS Fife and Dr Upton for discrimination and harassment, Dr Upton insisted that there was no obligation to disclose “personal information” to patients requesting female only care. This was in response to a question about disclosing information about biological sex, so we can infer that Dr Upton was referring to biological sex as personal information. 

Ms Cunningham began her cross examination yesterday morning by asking Dr Upton about the needs of women with a history of sexual trauma, suggesting that victims are not defined by this trauma but may need to access services such as forensic exams or everyday medical treatment. Dr Upton agreed but when asked about treating a female patient requesting female-only care, insisted that there was no obligation to disclose information relating to sex, to the extent that Upton recognised biological sex as a real concept. It is important to stress at this point that biological sex is a well-established concept in law and that the law that is relevant here requires an assessment of an individual’s actual sex, not what they perceive their sex to be. 

When asked if this would place a burden on female patients to disclose sexual trauma prior to receiving requested female-only care, Upton insisted that any patient can refuse to be treated by any doctor, if they ask that doctor to leave. Dr Upton stressed that “consent is very important” but agreed with Ms Cunningham that if a patient requested female only care Upton may still be assigned to provide treatment and it would be up to the patient, after already requesting female only care, to further request not to be treated by Upton. Ms Cunningham suggested that this approach was cruel, but Dr Upton disagreed. 

Dr Upton appears to be operating from the presumption that there is a legal right to keep information about one’s sex private in the context of providing intimate care and examination to female patients who have requested female only care and who have been told that is what they will receive. This is not accurate as a matter of law. 

Ordinarily, a person’s sex is not private or sensitive information. For those who have gone to, sometimes extensive, measures to hide their natal sex, one can readily appreciate that information pertaining to it might be sensitive to the individuals involved. Whether this is also private information for the purposes of legal rules prohibiting disclosure is the central question here. To answer it, one must consider issues of both fact and law. As a matter of fact, something cannot be private information in contexts where it is not private. I have red hair. If I am in a room with another person, it will be obvious to them that I have red hair. I cannot claim that this is private information in that context: as a matter of fact, this is readily ascertainable to anyone who can see me. 

In another context, however, it might become clear that someone is attempting to conceal certain facts about themselves that others might nevertheless notice. If I am bald but wear a toupée to conceal this fact, it may be obvious that this is what I am doing, depending on how convincing the toupée is. In that context, the information may not be private as a matter of fact. 

If, as in the hypothetical presented to Dr Upton, a patient in distress, potentially as a result of sexual trauma, has not noticed the biological sex of a male doctor who identifies as a woman, the information may be private as a matter of fact. That does not mean that it is information one has a right to keep private. In such a case, the failure to disclose information about one’s sex could violate the human rights of the patient. 

In Murray v Express Newspapers plc, a case involving attempted publication of photographs of JK Rowling’s child, it was established in law that whether someone is entitled to an expectation of privacy in relation to information about themselves depends on all of the circumstances of the case: 

They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.

An assessment of whether it is lawful to disclose information someone wishes to keep private will depend on whether the right balance has been struck between the privacy of the individual and the rights and interests of others. 

With intimate examination or care of patients, there is an ever-present risk that an Article 3 ECHR violation of the right not to be subject to inhumane or degrading treatment can occur. For example, in the Valašinas v Lithuania, the European Court of Human Rights found that requiring a man to strip naked in the presence of a woman, and then touching his sexual organs and food with bare hands, was a breach of Article 3.

In response to the hypothetical scenario presented by Ms Cunningham, Dr Upton told the tribunal that there was no obligation to disclose “personal information” when treating a female patient who has expressly requested female-only care. Taken at face value, that seems to me to be an admission on Dr Upton’s part of seeing no issue with treating a patient without informed consent. 

There is no right to keep information about biological sex from patients who have requested female only care

We do not know if Dr Upton has a Gender Recognition Certificate, but that is highly unlikely to make a difference in a case such as this. In the lower courts in For Women Scotland v The Scottish Ministers, Lady Haldane noted that the Gender Recognition Act will not modify the meaning of legislation “where it is clear that ‘sex’ means biological sex”. The example she used was the Forensic Medical Services (victims of Sexual Offences) (Scotland) Act 2021, “where references to the sex of the forensic medical examiner can only mean, read fairly, that a victim should have access to an examiner of the same biological sex as themselves”. 

There is no right to keep information about biological sex from patients who have requested female only care, particularly in relation to care involving intimate touching of genitals or where the patient requires intimate care as a result of sexual assault.