By Charlotte Webster-
NHS England has published updated guidance for healthcare organisations on the provision of single-sex facilities, instructing trusts to audit their arrangements to ensure they protect the “privacy, dignity and safety of all staff”.
The changes follow last year’s Supreme Court ruling on the legal definition of sex under the Equality Act 2010 and have prompted sharply contrasting reactions from transgender rights campaigners and organisations advocating for sex-based rights.
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The updated guidance states that NHS trusts with predominantly single-sex facilities should consider providing “suitable and accessible alternatives”, including single-occupancy facilities or mixed-sex facilities with individual lockable rooms. It marks a change from previous NHS England guidance, which allowed patients and staff to be accommodated on wards or use facilities according to their gender identity.
However, the new guidance has raised concerns about how the changes will be implemented in hospitals already facing significant resource pressures. In a joint statement, transgender advocacy groups TransActual and Trans+ Solidarity Alliance criticised the guidance, warning that it would “not survive contact with reality in resource-strapped hospitals” and could create unworkable operational challenges.
The organisations argued that, although the guidance prioritises clinical judgment over blanket exclusion, it does not provide sufficient clarity for individual healthcare professionals on how to care safely for transgender patients.
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They said forcing transgender people to use facilities corresponding to their sex assigned at birth would not necessarily be clinically appropriate and could discourage them from seeking healthcare. The groups also accused the government of putting politics ahead of patient care by failing to resolve the legal uncertainty surrounding the issue.
The guidance has been revised following a Supreme Court judgment last year which ruled that the terms “woman” and “sex” in the Equality Act refer to biological sex and do not include transgender women, including those who hold gender recognition certificates.
The Equality and Human Rights Commission has subsequently revised its code of practice to clarify that a service must be based on biological sex to qualify as a single-sex service under the legislation.
Maya Forstater, chief executive and co-founder of the charity Sex Matters, welcomed the changes, describing the policies as “a momentous shift back to reality”. However, she expressed concern that NHS England had not explained how the rules based on biological sex would be implemented in practice. She also criticised the delay in publishing the guidance, noting that it had been issued 18 months after the Supreme Court judgment despite initially being promised within weeks.
Forstater pointed to the case of female nurses at Darlington Memorial Hospital who won an employment tribunal claim in January after raising concerns about being required to share single-sex changing facilities with a transgender colleague.
The tribunal found that the nurses had been subjected to a “hostile, intimidating, humiliating and degrading environment” at work and had been told to “broaden their mindsets” when they voiced their objections.
Bethany Hutchison, the lawyer who led the nurses’ claim, also welcomed the updated guidance, describing it as “clear and necessary”. However, she stressed that its effectiveness would depend on whether NHS trusts complied with the requirements.
“The test now is whether NHS trusts will actually follow it,” Hutchison said. “The Darlington nurses should never have had to take their own employer to court to secure privacy, dignity and lawful single-sex facilities.”
She added that enforcement should not continue to depend on the courage and personal sacrifice of individual nurses.
The updated guidance places renewed emphasis on the responsibility of NHS organisations to review their facilities and ensure that their arrangements comply with the law. However, questions remain over how trusts will balance the legal requirements governing single-sex spaces with the clinical needs, dignity and safety of transgender patients, particularly where hospitals lack the resources to provide alternative facilities.
The response from campaign groups on both sides highlights the practical and ethical challenges facing the NHS as it seeks to implement the legal changes. While advocates for sex-based rights have welcomed the move as a necessary step towards protecting single-sex facilities, transgender rights organisations warn that its implementation could create further barriers to healthcare. The extent to which the updated guidance changes practice across the NHS will depend on how individual trusts interpret and apply it in the months ahead.
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