NHS England guidance allows exclusion of trans women from female wards

Hospitals in England must now accommodate trans patients according to their birth sex, under new guidance published by NHS England. The updated advice confirms that trans women can be excluded from female wards, and trans men from male wards, if it is not clinically appropriate for them to be placed otherwise.

The guidance, published on Thursday, states that all patients should be treated with respect, dignity, compassion, and care. It specifies that trans people and others with the protected characteristic of gender reassignment should be accommodated in line with their biological sex. This aligns with principles previously confirmed by the Equality and Human Rights Commission (EHRC) code, which stated that for a service to be classed as single-sex under the Equality Act, it must be used on the basis of biological sex.

Previous practice and legal context

Under previous NHS guidance, trans patients could be accommodated on single-sex wards based on the gender with which they identified. The new guidance comes 18 months after a Supreme Court ruling on biological sex and follows the official commencement of wider EHRC guidance on single-sex spaces earlier this year.

The EHRC code had explicitly stated that a trans woman would be excluded from a men-only service because her sex is female, and a trans woman would be excluded from the women-only service because her sex is male. This principle now extends to single-sex hospital wards.

Exceptions and reporting

The NHS England document acknowledges that hospitals should identify alternative arrangements for trans patients where it would not be clinically appropriate to care for them on a ward of their biological sex. It states that where clinical needs and same-sex accommodation requirements cannot both be met, clinical needs are the priority. Occurrences where a trans patient is placed on a ward of their gender identity, contrary to this guidance, are described as likely to be rare. Reasons for such instances must be clearly recorded and reported nationally as breaches of this guidance.

Reactions and ongoing concerns

Bethany Hutchison, a nurse from Darlington who led a successful employment tribunal claim against County Durham and Darlington NHS Foundation Trust, welcomed the guidance. Her claim related to a trans colleague being allowed to use women’s changing facilities, which the tribunal found created a hostile environment for nurses. Ms Hutchison, president of the Darlington Nursing Union, stated that the test now is whether NHS trusts will follow the guidance and urged for swift alignment of all NHS policies.

However, campaign groups TransActual and Trans+ Solidarity Alliance expressed concerns. They stated that the guidance emphasises clinical judgment over blanket exclusion but leaves healthcare professionals unclear on how to safely care for trans patients. The groups argued that forcing trans people into spaces based on their sex assigned at birth would not be clinically appropriate and could deter trans people from accessing care. They also warned of unworkable operational challenges in resource-strapped hospitals.

Legal action prompts policy review

Separately, an NHS trust is reviewing its policies after a doctor initiated legal action. The doctor described an incident where a biologically male patient was placed on a women’s ward and allegedly exposed himself, calling it an “egregious safeguarding failure”. While the trust stated it had no record of this specific incident, the doctor is understood to be continuing her legal claim, citing delays and resistance when she raised concerns about single-sex spaces with her employer.

Updated guidance for NHS England staff also specifies that single-sex facilities such as changing rooms and toilets should be used according to biological sex. Organisations with mainly single-sex facilities are advised to consider providing suitable and accessible alternatives, such as single-occupancy or mixed-sex facilities with individual lockable rooms, to respect privacy and dignity for all staff.