My Lords, the noble Lord, Lord Blencathra, and I have grave concerns about the present single-sex ward provision which our two amendments seek to obviate. I have had the opportunity already to discuss this with the Minister himself—the noble Lord, Lord Kamall—and I am grateful for the opportunity he gave me also to meet with his officials. None the less, these two amendments address the very sensitive issue of hospital bed space allocation and hospital service provision for women.
Traditionally, female patients in the NHS and in private hospitals have been allocated beds in single-sex wards accommodating only women patients. Transgenderism —I speak as a woman—has undermined that provision, with the 2019 NHS guidance authorising self-selection of patient gender on arrival in hospitals, something neither enshrined in law nor backed by public demand, and overriding the exemption for hospital services in the Equality Act 2010. Yet Parliament and our Ministers have consistently declared that women both need and should have privacy, dignity and safety in their most vulnerable of situations, such as when sick or pregnant. As consistently, Ministers on all sides of both Houses have declared that this will be or already is the case.
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In 1999, for example, when serving in the other place, the then Health Minister, the noble Lord, Lord Hutton of Furness, responded to powerfully expressed concerns from the Member for New Forest East about female privacy by guaranteeing single-sex wards and enshrining that promise in the Patient’s Charter. Later, when the NHS constitution replaced the Patient’s Charter, the same firm commitments were made. Today, nurses, whose code of practice ensures that all patients have their privacy respected and dignity and safety assured, should have a simpler task in ensuring that these truly fundamental responsibilities to all patients are fulfilled, since the old Nightingale wards, in which sex segregation was much needed, really do not exist in the present NHS hospitals, where there is a mixture of single rooms and four-to-six bed bays. It is therefore easier for ward sisters to keep the sexes apart, rather than having mixed-sex bays, which give rise to discomfort for female and male patients alike.
None the less, female patients consistently find that the reality of mixed-sex wards has won through against the Aesculapian tradition of prioritising patient care on medical grounds alone. We now find that the earlier guarantees of the safety, dignity and privacy of women are blown apart up and down the country by hospital trusts, which are mandated to follow annexe B of the NHS 2019 guidance on same-sex accommodation. I have found too many errors and wrong quotations of the Equality Act to feel comfortable with this guidance and its annexe B. While the guidance demands same-sex wards for 11 pages, saying that,
“Providers of NHS-funded care are expected to have a zero-tolerance approach to mixed-sex accommodation”,
it then contradicts itself on page 12, saying:
“Trans people should be accommodated according to their presentation: the way they dress, and the name and pronouns they currently use”.
These two requirements are not only incompatible; they are irreconcilable and do not follow the Equality Act.
A staff nurse told me that her NHS trust policy makes it impossible for her to do her job. She is obliged to advocate for the vulnerable, but trans rights supersede all other rights and concerns, and if she speaks out, she is challenged. A cervical smear test of a 14 year-old whose mother requested a female nurse could not be done. The child left because it was very clearly a natal male who came forward to offer the service.
Nurses tell me that they feel inhibited in doing their jobs and are afraid to speak out for fear of being called bigots or disciplined through loss of their job. I have met several nurses who have lost their jobs because of this. Surely, human rights are about the dignity of each person; they are not the privilege of the few to the detriment of the many. A doctor told me that he no longer feels able to make comments about sex and gender. He recently delivered a baby, said it was a girl, and was accused of transphobia. In fact, hospital services are excluded from the Act, and in any event, mixed-sex bathing and toileting facilities are precluded both by the nursing code and by the NHS constitution handbook, as are mixed-sex wards, except under exceptional medical need and at the patient’s request. However, that same premise is discarded if a male patient self-declares as a woman. He then has access to all the female toileting facilities, for example.
Turning to patient safety, recently, on a respiratory care ward, a male patient got into the bed of a female patient. The woman was so distressed that she refused to wear the necessary breathing apparatus in case it stopped her being able to escape a similar situation. On a mixed-sex ward, a male nurse, now serving a prison sentence for the offence, violently raped a female patient.
It is axiomatic that in any hospital setting, patients are at their most vulnerable and NHS medical professionals take great care to avoid any extraneous stress. It is therefore puzzling as to why the NHS has chosen to prioritise mixed-sex wards or bays, assigning beds in female spaces as a matter of right for patients who are in the gender-transition process, when the physical and the psychological diverge, or who may have completed transition but none the less can never recover their prepubertal undeveloped strengths. It is surely obvious that prostate cancer patients remain male and that loss of breasts in women cancer patients does not remove their womanhood.
Of course, there are voices which claim that sex is assigned at birth, when it is noted and recorded, and that sex can be changed through a mix of operations and continuous hormonal drugs. I do not hear the NHS making that claim, and since in our society we follow the science—here in our House the noble Lord, Lord Winston, has made that very clear—we must conclude that, so far, the NHS cannot change a patient’s sex. My argument rests on that assumption.
In common with traditional practices, which affect all faiths, ethnic backgrounds and historic behaviour patterns, our amendments request a restoration of
earlier female patients’ safety, privacy and dignity, the core purpose of single-sex wards or bays. I conclude that the NHS has taken a wrong turning on this issue, since its own policy is to provide same sex accommodation, and since Parliament chose to make hospitals exempt from the service provisions of the Equality Act—a decision which has not, to the best of my understanding, been reversed in either House of Parliament. It is my contention that this policy profoundly disadvantages women in the entire NHS hospital setting.
Of course, the gender bias adopted by the NHS reflects mainly males in women’s settings, and recently the Equality and Human Rights Commission has announced that it will be publishing—very soon, I believe—a paper on this issue, and we wait for that. Its current guidance discusses service provision and reminds us that male transgender patients are not deprived of hospital service provision; it is simply that they should not be placed with women. They can easily also be placed away from male wards that may disturb them, perhaps in side rooms, so that all have equal access to services, and all will be treated with dignity, privacy and safety. Non-placement on women’s wards does not in any way undermine this. It also reiterates the balance of rights, and the need to ask patients their preferences. This does underline the need for a review, with women’s voices and a full equality assessment.
Of course, we must ensure that all voices are heard, and for that purpose I have set up a working group of trans persons to clarify what rights they see as missing or underfunded. I hope to present the results to the Minister to add to his department’s body of knowledge.
I end by saying that language is very important. A parent wrote to me today:
“It is only since becoming the mother of a disabled child that I realise quite how nefarious the ‘wrong body’ narrative is”—
that is another part of this argument.
“If someone can be born ‘wrong’, that implies there are inherently right and wrong types of people. History has surely taught us that this line of thinking never ends in a happy place. Like you, I believe that all children, whatever their circumstances, are born perfect and deserve to be treated with respect and love.”
At the core of human rights, which must be the foundation stone of her argument, is the concept of human dignity. Bodily integrity is closely related to dignity and autonomy, and has been described by Hale LJ—now the noble and learned Baroness, Lady Hale—in her judgment as
“the most important of civil rights”
and
“the first and most important of the interests protected by the law of tort.”
Bodily integrity is protected by Article 3, freedom from torture and inhuman or degrading treatment, and by Article 8, respect for private life, of the European Human Rights Convention. Other groups—women and persons with disability—enjoy special protection. Language matters: it leads to human action, and whether that be good or bad for us comes from the language in which our views are expressed. Humiliation, separation and degradation of others all stem from the language used to describe a group or an individual. “Cis woman” is as unacceptable as “wrong body”. Both degrade the individual.
The National Health Service is magnificent—I speak as its former global special envoy—but it cannot always be perfect. I urge the Minister to set up a review of language and actions used to sustain the safety, dignity and privacy of all patients—especially, in this context, women. I beg to move.