The erosion of single-sex hospital accommodation in Scotland
Outcry at failure to end mixed sex hospital wards
ALMOST nine months after the Scottish Executive promised there would be no mixed sex wards in hospitals it emerged yesterday that there are still 34 wards where male and female patients are sharing sleeping, toilet, and bathing facilities.Patients’ organisations, opposition MSPs, and nursing representatives last night described the situation as disgraceful and criticised the executive for breaking its promise to end mixed sex wards by April 2002…
The potential risks of mixed sex wards were highlighted in 2000 when an 83-year-old woman died a week after allegedly being assaulted by a male patient on her ward at the Victoria Hospital in Kirkcaldy, Fife.
… Nicola Sturgeon, SNP health spokesman, said: ”Mixed sex wards should be a thing of the past by now. They are yet another example of a broken pledge by Labour on health.”
The Herald, 7 January 2003
This article looks at respective government commitments to end single-sex hospital accommodation in Scotland dating back to the early days of devolution, assesses the current situation in Scotland, and draws out the implications for the Gender Recognition Reform (Scotland) Bill. Drawing on policies and guidance accessed via Freedom of Information, the analysis shows that health boards are either already failing to guarantee single-sex accommodation (in clinical areas where this is feasible), or do not have policies in place. We conclude that the GRR Bill as currently drafted will exacerbate this by cementing into law the principle that if a man says he is a woman, society should see and treat him as such, even in the most sensitive contexts, rendering the single-sex exceptions under the Equality Act 2010 a dead letter. We also outline amendments to the Bill that would avoid this effect.
Why single-sex hospital accommodation matters
Several ethical and practical considerations underpin the need for single-sex hospital accommodation. Current NHS Tayside policy on single-sex accommodation refers to values of dignity, respect, privacy, and modesty. The policy states, ‘it is recognised that the provision of single sex accommodation in health care organisations is considered to be a key factor to maximise patient dignity and ensure that privacy is promoted and respected’. For some patients, religious beliefs will be relevant. As MSP Pam Gosal recently explained at Stage 2 of the Gender Recognition Reform Bill, “for many religious women, particularly in the Islamic faith, it is religious law that they shall not let a man touch or see their body” (SP OR 22 November 2022: col. 14).
Patient vulnerability is a key consideration. In this powerful piece, Victoria Smith documents how a private hospital in London took the extraordinary decision to deny surgery to a sexual assault victim, after she requested female-only care. Smith explains:
Fear of male people while in a highly vulnerable physical state is not illogical; asserting boundaries can form an important part of recovery. For rape victims in particular, the right to stress the primacy of one’s own perceptions of sex and power — rather than cede to someone else’s insistence that their sex, and their power in relation to you, is whatever they say it is — can be vitally important.
Safety is also, or at least should be, a critical consideration. A recent investigation by Byline Times found that 4,100 patients, visitors and NHS staff in England and Wales were raped (1,364) or sexually assaulted (at least 2,744) in a hospital setting between January 2019 and September 2022. Of these, 633 individuals were raped or assaulted while on a hospital ward.
The commitment to ending mixed-sex accommodation in Scotland
In 1999 the then Scottish Minister for Health and Sports, Labour MP Sam Galbraith announced that resources would be made available to end mixed-sex hospital accommodation in Scotland. The following year, in the newly devolved Scottish Parliament, Labour MSP and Health Minister Susan Deacon reiterated his commitment, stating that £4.2 million had been made available for this purpose.
By early 2004 a very small proportion of mixed-sex wards remained in place in Scotland (cited as 1%). Referring to this shortfall, SNP MSP Shona Robison questioned the then Labour Health and Community Care Minister Malcolm Chisholm on the reasons for this, describing the situation as “totally unacceptable”. She said:
Does the minister agree that it is totally unacceptable for any patients in Scotland to have to be accommodated in mixed-sex wards? Was all of the £4.8 million that was allocated to resolve the problem indeed spent on addressing it? When will we finally see an end to mixed-sex wards in Scotland?
Scottish Executive Question Time, Shona Robison, 12 February 2004
Commenting in the press later that year, Ms Robison referred to the indignity of mixed-sex wards.
It’s another broken pledge from the Executive. The indignity of mixed-sex wards has been something that has been around for far too long and something which the health minister and previous health ministers had promised to do away with. It remains to be seen whether their promise to do this by the end of the year is any more meaningful than their previous promises.
Scotsman, 3 August 2004
Single-sex health care and gender self-identification
The debate on single-sex hospital accommodation has shifted significantly since the early days of devolution. In July 2022 SNP Health Minister Humza Yousaf again restated the Scottish Government’s commitment to single-sex wards in response to a written question from Scottish Conservative MSP Sue Webber, albeit now in a very different context. While the policy aim remains the same, namely, providing single-sex accommodation for patients, how this can be achieved now occupies much more thorny territory, principally due to the mainstreaming of gender self-identification policies by Scottish public bodies, and the prioritisation of gender identity over sex. If patients are allocated to accommodation on the basis of self-defined gender instead of sex, it follows that single-sex accommodation will invariably become mixed-sex accommodation.
The single-sex exceptions
In theory, the solution appears simple: health boards should apply the single-sex exceptions in the Equality Act 2010 which provide for single or separate sex services in justified and proportionate circumstances, whether or not a person has a gender recognition certificate (GRC). Indeed, in his response to Ms Webber, Mr Yousaf referred to the exceptions, with the caveat that all responsibility for applying these lay with ‘individual organisations’:
Scottish Government has not undertaken a recent assessment of mixed sex wards in NHS hospitals.
Since 2005 the Scottish Government has expected Boards to ensure that all of their facilities comply with the guidelines and recommendations on the elimination of mixed sex accommodation produced in 1999 and 2000 following a review of mixed sex accommodation, as well as relevant legislation including the Equality Act 2010.
This Government supports the appropriate use of the separate and single-sex exceptions contained in paragraphs 26, 27 and 28 of Schedule 3 of the Equality Act 2010 by service providers, where it is a proportionate means of achieving a legitimate aim. When taking decisions on where a person should be accommodated in the NHS, account should be taken of the rights of all.
Responsibility for complying with the requirements of the Equality Act 2010 rests with individual organisations. The Equality and Human Rights Commission has produced guidance to support separate and single sex service providers.
Scottish Parliament written question S6W-09437
In practice however, health boards appear confused, unaware, or simply unwilling to apply the exceptions. Encouraged by lobbyists and reinforced by a drive from central and local government to embed gender self-identification principles, hospital managers across Scotland have developed policies for transgender patients that make single-sex hospital accommodation near impossible.
Gender Recognition Reform (Scotland) Bill
This confusion was brought into sharp focus at the second Stage Two Committee meeting on the Gender Recognition Reform (Scotland) Bill, during which MSPs questioned Cabinet Minister Shona Robison on how single-sex health services could be provided if a) health boards are already failing to do so, and b) a much larger number of Gender Recognition Certificates (GRCs) are issued to a more diverse range of people. Barrister Naomi Cunningham explains:
If the Bill in its current form is passed, single-sex spaces and services will come under intense pressure from members of the new, larger group possessing GRCs who feel entitled to automatic access. And public authorities and service-providers may well often be intimidated into allowing that access by the complexity and uncertainty of the potential legal arguments. There is already plentiful evidence that providers are struggling to understand the law here.
Naomi Cunningham, Legal Feminist 27 November 2022
Pam Gosal and other MSPs expressed concern about the ‘chilling effects’ of the privacy protections in Section 22 of the 2004 Act, which make it a criminal offence to disclose a GRC holder’s sex if that information has been received in an official capacity. Seeking support for an amendment that would bring clarity on the use of Section 22, Claire Baker MSP referred to a Scottish health board, which in response to a freedom of information request said:
Unless the practitioner consented, to exclude them from carrying out female-only care would be a breach of section 22 of the Gender Recognition Act 2004 and a criminal offence. There are also restrictions under the Equality Act 2010 around requiring staff to disclose their gender identity and staff selection on this basis.
As Ms Baker commented: “I am not sure where to start on the inaccuracies in that statement. A health board can exclude on the basis of gender assignment, regardless of whether someone holds a GRC.”
In responding to these concerns, the Cabinet Secretary said “It is vital that a person’s right to privacy is protected in that way. We are not amending section 22 of the 2004 act” (SP OR col. 26) and referred MSPs to guidance for public bodies published by the Equality and Human Rights Commission (EHRC), stating:
The exclusions are exactly the same, and the bill makes no change. The updated guidance that the Equality and Human Rights Commission has issued should be followed by public bodies, and that guidance is clear. The EHRC is clear that if a public body deems it proportionate—the EHRC gives some guidance on proportionality in applying those exceptions—to exclude trans women, or trans men for that matter, with or without a gender recognition certificate, it is entirely within the 2010 act for it to be able to do so. I do not think that I can be any clearer than that.
SO OR 11 November 2022: col. 60
It should be emphasised here that the EHRC cannot settle legal disagreements about how the law should operate in this area, and the EHRC itself has raised concerns about the implications of the Bill for the Equality Act 2010.
The state of play in Scotland’s hospitals
The remainder of the blog looks at Scottish health board polices on the accommodation of transgender patients, and whether these are compatible with the Scottish Government commitment to single-sex hospital accommodation. The analysis is based on the following Freedom of Information request, submitted to Scotland’s fourteen regional health boards in late 2021.
Please provide copies of all official policies and/or guidance, whether developed for use by Trust staff or patients, relating to patients with transgender identities including policies and/or guidance regarding accommodation for patients with transgender identities on wards.
Please also include details of any internal or external groups or organisations which had input into these policies and/or guidance, as well as copies of equality impact assessments for these policies and/or guidance.
In responding to the request, health boards provided a mix of information, including policies for patients, staff, and other documents, such as broad-brush equality and diversity reports.
Six health boards provided either substantive policies or shorter documents aimed at supporting transgender patients, ranging from a single page document, to detailed standards. In places, these are variously muddled, legally inaccurate, and scientifically illiterate.
The remaining eight health boards gave either short summaries of their policy position, provided other documents, or stated that they did not have a policy in place. These tend to be Scotland’s smaller health boards, some of which provide single-occupancy rooms as standard practice (details of the respective populations covered each health board are shown in Annex 1). The notable exceptions are NHS Lothian, NHS Fife and NHS Lanarkshire, the latter of which was subject to critical media attention in 2020 for its policy on supporting transgender staff.
The respective policies and responses are discussed below. Where the policies or responses overlap, these are grouped together.
NHS Greater Glasgow and Clyde and NHS Ayrshire and Arran
NHS Greater Glasgow and Clyde (NHSGCC) and NHS Ayrshire and Arran (NHS A&A) policies for supporting transgender service users are broadly similar. NHSGCC is Scotland’s largest NHS board and houses one of the four NHS gender identity clinics, which also sees children under the age of 17. The NHS A&A Supporting Trans Service Users Policy acknowledges it ‘has been adapted from the NHS Greater Glasgow and Clyde Gender Reassignment Policy and developed through consultation with trans representatives and the Scottish Trans Alliance’ (2021: part 1).
NHS Greater Glasgow and Clyde
NHSGGC Gender Reassignment Policy for patients describes its overall approach in the terms below, asserting that ‘we are all part of a diverse gender spectrum’, and that there must be ‘no exception’ to a person’s ‘right to live with dignity and privacy in the gender with which they identify’.
NHSGGC recognises that traditional gender stereotypes are inadequate in reflecting the lives of patients using our services. NHSGGC will challenge a ‘them and us’ position, adopting instead an understanding that we are all part of a diverse gender spectrum.
NHSGGC recognises that people have the right to live with dignity and privacy in the gender with which they identify, and that there must be no exceptions to this when a patient with the protected characteristic of gender reassignment uses services and facilities.
In relation to the policy aims, the ‘fundamental position’ is that ‘patients will be accepted and treated in their acquired gender and that there are very restricted exceptions to this’ (pp.3-4). The exceptions mentioned in this context are likely to relate to the disclosure of information or sex-specific aftercare. The single-sex exceptions in the Equality Act are not mentioned.
The approach is characterised as a ‘proportionate response’ to discrimination experienced by trans people. It also notes that all protected characteristics need to be considered:
This policy approach is considered to be a proportionate response to the high levels of discrimination and prejudice experienced by people with the protected characteristic of gender reassignment. It is also considered a proportionate response to comparatively low levels of reported understanding or confidence by healthcare staff when working with patients and colleagues who have reassigned their gender.
The policy has been directly informed by the Equality Act (2010) and the legally protected characteristic of Gender Reassignment. However, delivering sensitive services will rely on staff having a wider understanding of inequality and any (or all) of the legally protected characteristics as set out in the Equality Act (2010) will need to be considered to ensure a person-centred service is delivered.
In-patient accommodation for trans patients is provided on a case-by-case basis. The policy is based on the 2011 EHRC Statutory Code of Practice, and the extract cited appears to be taken from EHRC guidance for voluntary and community sector organisations (pp.15-16), or a similar document (there are very minor text differences).
Where in-patient accommodation remains configured by sex (female/male only wards), patients with the protected characteristic of gender reassignment will be offered services in line with current guidance from the Equality and Human Rights Commission that uses an example stating –
‘An organisation which is providing separate sex services or single-sex services should treat a transsexual person according to the gender they identify with (as opposed to the physical sex they were born with). The service provider can only exclude a transsexual person or provide them with a different service if they can objectively justify doing so.
A voluntary organisation may have a policy about providing its service to transsexual users, but this policy must still be applied on a case-by-case basis. It is necessary to balance the needs of the transsexual person for the service, and the disadvantage to them if they are refused access to it, against the needs of other users, and any disadvantage to them, if the transsexual person is allowed access. To do this may require discussion with service users (maintaining confidentiality for the transsexual service user). Care should be taken in each case to avoid a decision based on ignorance or prejudice.
One factor an organisation should consider, is where a transsexual person is visually and for all practical purposes indistinguishable from someone of the gender they identify with, they should normally be treated according to their gender identity unless there are strong reasons not to do so.’
The EHRC recommend that decisions in relation to placement of people with the legally protected characteristic of gender reassignment are made on a case by case basis. NHSGGC will work to provide non-discriminatory placement in this way.
NHS Greater Glasgow and Clyde: para. 4.2
The advice here invokes the unworkable use of ‘case-by-case’ assessments, and the equally unworkable and unfair principle of ‘passing’, which is not based on the Equality Act itself. The main difficulty is establishing relevant and ethical criteria for decision-making by frontline staff. The characteristic of gender reassignment is not a sex-invisibility cloak, and what constitutes ‘visually indistinguishable’ in itself is subjective. For trans patients, basing accommodation decisions on personal appearance is likely to be demeaning and humiliating. It is also not clear what discussion with other service users would involve: would for example, a female patient be expected to disclose previous traumatic experiences to justify her wish for single-sex accommodation, as Scottish Trans have previously suggested in relation to intimate examinations by health care professionals.
It is also worth noting the EHRC has also changed its position on how the exceptions should be applied since 2011, with recent guidance published earlier this year taking a more balanced approach to the rights of different groups.
The Equality Impact Assessment on the policy lifts directly from the EQIA prepared by the Scottish Government for the 2019 Gender Recognition Reform Bill. This dismisses concerns about safety, and fails to consider the need for privacy, dignity and modesty. We have written extensively about why the Gender Recognition Reform Bill does not stand up to scrutiny here. An annotated extract from the NHS GCC EQIA is shown below.
Engagement undertaken by the Scottish Government indicated concerns raised about the implications of legal gender recognition and inclusion for women. These included: Access to women’s safe spaces; risk of abuse; intimate medical care.
The Scottish Government found a lack of evidence around the actual experienced impacts of trans inclusion in services though it was noted that much of the literature does not justify a blanket exclusion of trans women from services or spaces but highlighted the need for individual assessment and tailoring of services to meet individual need.
MBM note: the study cited by Scottish Government to support this statement drew the opposite conclusion, and argues for retaining single-sex spaces, stating ‘Trans inclusion then is one of the greatest threats faced by women’.
The Scottish Government were unable to identify any evidence supporting the claim that trans women are more likely than non-trans women to sexually assault other women in women-only spaces.
MBM note: This is misleading. The key concern relates to the risks associated with males as a sex-class, no matter how they identify. Males display much higher levels of violent and sexual offending, including against women. However, the EQIA effectively concludes that this does not apply to a particular subset of males simply because they describe themselves as having a particular identity. The narrow focus on incidents of sexual violence against women also excludes relevant evidence of impacts on women’s privacy, dignity, and psychological safety.
The Scottish Government was also unable to find any link between trans-inclusion in women-only spaces and non-trans men falsely claiming a trans identity to access these spaces and commit sexual violence.
MBM note: This assumes it is possible to distinguish between ‘non-trans men falsely claiming a trans identity’ for malign intent, and others. Self-declaration, by definition, precludes any such distinction.
NHS Ayrshire and Arran
The NHS A&A Supporting Trans Service Users Policy (2020) takes a harder line on accommodation, without scope for even case-by-case assessments. It states that in ordinary circumstances (bar exceptions for sex-specific aftercare, where ‘clinical risk clearly outweighs choice of gender-sensitive accommodation’) it is expected that trans identified patients will be accommodated based on their self-defined gender:
Where in-patient accommodation remains configured by sex (female/male only wards), trans patients will be offered accommodation that matches the gender in which they are currently living. For example, trans women will not be placed on male wards. To do so would be insensitive and may constitute a breach of the Equality Act 2010 and incur both financial and reputational risk to NHS Ayrshire & Arran.
NHS Ayrshire and Arran 2020: para. 4.2, emphasis in original
Under ‘Legal context’, the policy states ‘gender reassignment direct discrimination, indirect discrimination and harassment are all unlawful’ (Appendix 2). The policy is silent on the single-sex exceptions that provide for lawful discrimination.
Separately, NHS A&A also provided a copy of its Supporting Trans Staff in the Workplace Guidance (2018) and Equality Impact Assessment (EQIA), which lists the Stonewall Scotland Programme manager as one of the team members responsible for the review. Under ‘Race/Ethnicity’ and ‘Religion/Faith’, the EQIA suggests some staff members from some cultures and faith backgrounds respectively may be personally prejudiced against those with trans identities. In relation to religion/faith, it states:
This guidance covers employees from all religions/faiths and spiritual backgrounds. We recognise that different faith based groups/spiritual care groups have different preconceptions about trans people, and this means that some staff members may have personal prejudices about trans people that result from their own background.
Should this arise, NHS A&A has a duty of care to deal with any discriminatory behaviours and they will be dealt with in line with existing organisational processes.
NHSGCC and NHS A&A: ‘What does Transgender mean?’
NHSGCC and NHS A&A both provide the same, scientifically illiterate, explanation to the question ‘What does Transgender mean?’ in Appendices one and three respectively. This states:
When a child is born, the midwife or doctor declares it to be a boy (male) or a girl (female) through a belief that a person’s gender status can be ascribed on the basis of the visual appearance of their external genitals. The early assumption made is that sex and gender are interchangeable and that everyone can be neatly divided into two, mutually exclusive gender categories – boy or girl.
In most cases, the gender assumptions made on the basis of the external genitals of the baby work, with maturing children feeling a sense of comfort with their assigned gender.’
NHS A&A and NHSGCC: Practice Case Study
Both also set out an identical ‘Practice case study’ in Appendix 4, on how to deal with a female patient who has expressed concerns about the placement of a transgender patient on a nominally single-sex ward, albeit with some differences in how the scenario should be handled. These two policies are compared in the table below, with key differences in bold.
Extraordinarily, they both advise, ‘The nurse should work to allay the patient’s concerns – it would be appropriate to re-iterate that the ward is indeed female only and that there are no men present’. Similar advice, essentially instructing patients to disbelieve their own senses, was reported in the media last year in relation to NHSGGC. The full NHS A&S version is however far more extreme.
NHS A&A categorically state that making use of single-occupancy rooms as a default position for trans identified individuals ‘is in itself discriminatory’, whereas NHSGCC state is ‘could be discriminatory’. NHSGCC also acknowledge that ‘balancing the rights of patients is challenging’ and ‘the complainant should be given all appropriate support to access NHSGGC’s complaints process if they feel their concerns have not been listened to properly’. By contrast, NHS A&A state: ‘ultimately it may be the complainant who is required to be removed’ and describe such behaviour as equivalent to racism or homophobia.
Table 1. NHS A&A and NHSGCC Practice Case Study (Appendix 4)
| NHS Ayrshire and Arran | NHS Greater Glasgow and Clyde |
|---|---|
| Patients with the protected characteristic of gender reassignment are protected by law in terms of their rights to receive care that meets their current gender identity. NHS staff must be aware of their legal responsibilities in helping this to happen and understand the significant issues faced by patients in terms of receiving equitable and sensitive services. The following case studies represent scenarios experienced in health settings. Concerns expressed by many NHS staff specifically relate to inpatient accommodation for trans patients, normally where accommodation is segregated by sex (female and male only wards). These concerns tend to fall into three areas – identifying the most appropriate accommodation for a trans person, the potential hostility of other male or female patients towards the trans patient and the fear that sharing a ward with a trans person will in some way cause upset to cis-gender (non-trans) patients. Often, where inpatient care is planned, ward managers opt to accommodate trans patients in single-occupancy rooms where available to avoid potential difficulties. Adopting this position as a default is in itself discriminatory. NHS Ayrshire & Arran does not operate services on a gender approval spectrum, for example, if you don’t fit a female or male stereotype in terms of appearance you will be removed from public view. We would not operate this way for black, disabled, elderly or lesbian, gay or bi-sexual patients and it is not acceptable to consider this as an option for trans patients. Inpatient Scenario: A nurse is summoned to a patient’s bed in a female ward. The patient appears to be agitated. When asked what’s concerning her, the woman explains she didn’t expect to be sharing the ward with a man and points to the bed opposite. She states it’s inappropriate to have ‘him’ in the ward with the other women. She tells the nurse she can’t relax and wants ‘him’ removed from the ward. If this doesn’t happen she’ll make a formal complaint – the hospital has a duty of care to look after her and they’re not taking this seriously by putting her in this situation. The nurse listens and tells the woman she’ll see what she can do. She says that she understands having a trans person on the ward will be upsetting to other women and leaves to talk with a senior colleague about the matter. The response to the patient’s concern isn’t appropriate and breaches legislative protection afforded to trans people. Someone’s trans status can not be disclosed to a third party without the express permission of the trans person and the assumption that others in the ward will feel uncomfortable is unfounded. In this instance there is no need to either disclose or seek permission to disclose gender identity. The nurse should work to allay the patient’s concerns – it would be appropriate to re-iterate that the ward is indeed female only and that there are no men present. Her duty of care extends to protect patients from harassment and should the woman continue to make demands about the removal of the trans patient and be vocal in the ward it would be appropriate to remind her of this. Ultimately it may be the complainant who is required to be removed. The nurse should check with the trans patient and sensitively ask if everything is ok. If the trans patient has heard any of the discussions it is imperative that she is given every assurance that the matter will be dealt with. If the trans patient is visibly upset and there is spare capacity, it would be appropriate to offer her the option to move to a single room, though this must be with the interests of the patient in mind rather than conflict avoidance. General appreciation of trans issues is relatively low within our communities and often this is used as a rationale for behaviour that is essentially transphobic. If a white woman complained to a nurse about sharing a ward with a black patient or a heterosexual male complained about being in a ward with a gay man, we would expect our staff to act in a manor [sic] that deals with the expressed behaviour immediately | Patients with the protected characteristic of gender reassignment are protected by law in terms of their rights to receive care that meets their current gender identity. NHS staff must be aware of their legal responsibilities in helping this to happen and understand the significant issues faced by patients in terms of receiving equitable and sensitive services. The following case study represents a scenario experienced in a health setting. Concerns expressed by NHS staff specifically relate to inpatient accommodation for transgender patients, typically where accommodation is segregated by sex (female and male only wards). These concerns tend to fall into three areas – identifying the most appropriate accommodation for a transgender person, the potential hostility of other male or female patients towards the transgender patient and the fear that sharing a ward with a transgender person will in cause upset to non-transgender patients. Often, where inpatient care is planned, ward managers opt to accommodate transgender patients in single-occupancy rooms where available to avoid potential difficulties. Adopting this position as a default in itself could be discriminatory. Patient placement needs to be done with the full engagement of the patient involved and on a case by case basis. Inpatient Scenario: A nurse is summoned to a patient’s bed in a female ward. The patient appears to be agitated. When asked what’s concerning her, the woman explains she didn’t expect to be sharing the ward with a man and points to the bed opposite. She states it’s inappropriate to have ‘him’ in the ward with the other women. She tells the nurse she can’t relax and wants ‘him’ removed from the ward. If this doesn’t happen she’ll make a formal complaint – the hospital has a duty of care to look after her and they’re not taking this seriously by putting her in this situation. The nurse listens and tells the woman she’ll see what she can do. She says that she understands having a Trans person on the ward will be upsetting to other women and leaves to talk with a senior colleague about the matter. The response to the patient’s concern isn’t appropriate and may breach legislative protection afforded to Trans people. Someone’s Trans status should not be disclosed to a third party without the express permission of the Trans person and the assumption that others in the ward will feel uncomfortable is unfounded. In this instance there is no need to either disclose or seek permission to disclose gender identity. The nurse should work to allay the patient’s concerns – it would be appropriate to re-iterate that the ward is indeed female only and that there are no men present. Duty of care extends to protect all patients from harassment and should the patient continue to make demands about the removal of the other patient and be vocal in the ward it would be appropriate to remind her of this. The nurse should check with the other patient and sensitively ask if everything is ok. If the other patient has heard any of the discussions it is imperative that she is given every assurance that the matter will be resolved. If the patient is upset and there is spare capacity, it would be appropriate to offer her the option to move to a single room, though this must be with the interests of the patient in mind rather than conflict avoidance. Balancing the rights of patients is challenging. The concern expressed by the complainant should not be dismissed and accordingly if there is spare capacity of single rooms it may be prudent to make this offer to the complainant. The complainant should be given all appropriate support to access NHSGGC’s complaints process if they feel their concerns have not been listened to properly. |
NHS Forth Valley and NHS Highland
NHS Forth Valley and NHS Highland provided very short documents with advice for supporting transgender patients. NHS Forth Valley also provided a copy of its longer Supporting Transgender Staff in the Workplace policy, which lists former Scottish Trans manager James Morton and a member of Stonewall Scotland staff as contributing authors, and a copy of its Equality, Diversity and Human Rights Policy.
NHS Forth Valley
In relation to accommodation, the NHS Forth Valley Transgender Etiquette policy states:
Where inpatient wards are divided by sex (female/male only wards), Trans people will be offered accommodation that matches the gender in which they are currently living. Placing a Trans woman on a male only ward or Trans man on a female only ward against their wishes would be insensitive and may constitute discrimination.
NHS Forth Valley, emphasis in original
In situations where a patient is unconscious it states ‘It is important to aid recovery that a Trans person is not put under unnecessary stress by being placed into services not appropriate to their gender’. Neither single-occupancy alternatives nor the Equality Act exceptions are discussed.
NHS Highland
NHS Highland provided a one-page ‘Trans Respect’ (2020) document, described as informal guidelines ‘to help staff know how to ensure that they treat people who are transitioning with respect’ (staff or patients) and a Supporting Transgender Staff in the Workplace (2019) policy (a link to the EQIA for the latter did not work).
The Trans Respect document carries the logos of Highland LGBT Forum, LGBT Youth Scotland, Scottish Trans and Stonewall. It does not however appear to be a final draft, as it still contains minor tracked changes. The Equality Act is not mentioned. With an exception for wards that are configured to provide specialist after care treatment for sex-specific issues, the document inaccurately, if assertively, states:
Where inpatient wards are divided by sex, trans people will be offered accommodation that matches their gender, as declared by the patient. Failure to do so will constitute discrimination.
NHS Highland (2020) our emphasis
NHS Grampian
NHS Grampian provided a Guide for Staff to help them meet the needs of Trans Patients attending for Hospital Care (2019), produced by the ‘NHS Grampian Diversity Group’. There is no indication of external input.
The guidance is confusing and odd in places. It notes that although ‘there is no reliable information on the number of trans people in Grampian’ but that the ‘best local estimate is 44’, that ‘various studies have shown that 70% of people who transition, transition from male to female, and that an estimated 58% of trans people have attempted suicide or seriously attempted it. No sources are provided.
Under ‘In-patient accommodation for transsexual patients’ the guidance recommends that allocation is based on the stage of a patient’s transition process. No criteria or further guidance for decision-making is provided. The Equality Act exceptions are not mentioned.
Trans in-patients who have fully transitioned should be accommodated in wards appropriate to their sex [MBM note: we assume this means gender identity].
Trans patients who have not yet begun the transition process or who are part way-through the transition process, require special consideration. These patients should be involved in the discussion to determine which accommodation would be most suitable for them.
In their resposne, NHS Grampian state ‘This booklet is issued to staff as part of our NHS Grampian Equality and Diversity Training Seminars. The subject of meeting the needs of Trans patients is also part of each seminar. In the last 3 years, 2,500 staff have attended this training’.
NHS Tayside
NHS Tayside provided links to its Dignity & Privacy (Single Sex Accommodation) Policy (2018),1 as well as it Embracing Equality, Diversity and Human Rights Policy (2017) and Gender-Based Violence Employee Policy (2017).
The single-sex accommodation policy states that the existing document was reviewed and updated in September 2022 ‘to include guidance on Separate and single-sex service providers: a guide on the Equality Act sex and gender reassignment exceptions from the Equality and Human Rights Commission’. The policy places a strong emphasis on privacy, dignity, respect, and modesty. Under ‘Purpose and Scope’, it states:
Human dignity is an underlying principle of Human Rights (Scottish Human Rights Commission 2012). Loss of dignity compromises self esteem, respect and confidence. It can make an individual feel unimportant, unworthy or lost and misplaced, which can have a far-reaching impact for the person, on their functioning and their relationships which can perpetuate mental health/illness issues and inhibit recovery. It is recognised that the provision of single sex accommodation in health care organisations is considered to be a key factor to maximise patient dignity and ensure that privacy is promoted and respected.
The ‘Statement of Policy’ confirms NHS Tayside’s commitment to providing single-sex accommodation in most circumstances, with exceptions for a few clinical areas (for example, intensive care and children’s services), and in some exceptional or unavoidable circumstances.
Every patient has the right to receive high quality care that is safe, effective and respects their privacy and dignity. NHS Tayside is committed to providing every patient with single sex accommodation, to help safeguard their privacy and dignity when they are often at their most vulnerable…
All in-patients across NHS Tayside will be cared for in wards or enclosed rooms/bays/areas that are for single sex occupancy’. Exceptions to the provision of single sex accommodation apply to the following areas…
Single-sex accommodation is defined in the following terms:
For the purposes of this policy single sex accommodation is defined as when a room or bay is specifically for one sex with washing facilities also available solely for this one sex.
The ‘Statement of Policy’ also however, confirms that self-defined gender is treated as sex for the purposes of accommodating patients, thereby rendering the policy de-facto mixed-sex in some situations.
Trans people who have proposed, commenced or completed reassignment of gender should be accommodated according to their presentation (the way they dress, the name and pronouns that they currently use). This may not be the same as their physical/biological sex appearance; it is not dependent on them having a legal name change or gender recognition certificate
Some patients may present as non-binary where they do not identify as either sex, male or female. If this is the case it is best to accommodate them in a single room.
Strikingly, the single-sex exceptions in the Equality Act are not mentioned; despite a policy review in late 2022 to discuss the recent EHRC guidance for separate and single-sex service providers, which is also cited in the references.
NHS Lothian, NHS Lanarkshire, and NHS Fife
Despite its size as Scotland’s second largest health board, NHS Lothian stated that ‘there are no NHS Lothian official Policies or Guidance relating specifically to patients with transgender identities’, although it did provide a copy of its Transgender Workplace Support Guide (2016). Separately, we located a copy of its Standard Operating Procedures (SOP) specifically ‘for the management of beds within the Adult Acute Mental Health In-patient Service at Royal Edinburgh Hospital’. This acknowledges that the Equality Act exceptions may be used, based on an objective assessment of the circumstances, and balancing the needs of different patients:
There may be some circumstances where it is lawful to provide a different service or to exclude a transgender person from single sex ward of their preferred gender but only if this is a proportionate means for achieving a legitimate aim.
NHS Lanarkshire is Scotland’s third largest health board and similarly stated that it ‘currently has no official policies and/or guidance relating to patients with transgender identities regarding accommodation on wards’.
NHS Fife is Scotland’s sixth largest health board and did not provide any policies or guidance relating to patient care. It did however provide an assorted range of other literature, mostly from external bodies, a copy of the NHS Fife Equality Mainstreaming Final Report 2017-2021, and a draft poster for patients on Gender, Pregnancy and Radiotherapy.
NHS Scottish Borders and NHS Dumfries and Galloway
NHS Borders held no information on policies or guidance for transgender patients, although their response stated:
It is, however, standard procedure to place a patient in the ward for the gender that they identify as; if they not wish to be placed in a ward then a cubicle will be found to place the patient.
A separate FOI response found online indicates that possession of a Gender Recognition Certificate (GRC) would entitle a patient to be accommodated in their preferred ward:
If a patient in possession of a gender recognition certificate requested to be accommodated in a female ward [and vice-versa], the patient would be accommodated in a bay within a ward that they have requested. Please note however that patients will be accommodated within wards that best meet their clinical needs.
For patients without a GRC, the response states that ‘a private cubicle with its own facilities for the patient would be suggested’.
Likewise, NHS Dumfries and Galloway did not have specific policy/guidance. The response noted that ‘The Board’s main hospital is single bedrooms and other hospital sites have the capacity to accommodate in single rooms’.
NHS Orkney, NHS Shetland, and NHS Western Isles
The final three health boards cover Scotland’s island communities. Copies of the responses from all three health boards are here. NHS Orkney is Scotland’s smallest health board and did not provide any policies or guidance. A separate FOI explains that Orkney’s only hospital operates on a single room basis with the exception of the High Dependency Unit.
NHS Shetland stated:
We do not have any specific policies in regard to placing or accommodating transgender patients on our wards. Our wards are mixed sex and patients are placed on the surgical or medical unit according to their clinical condition (i.e. reason for admission) and/or infection control status. In the event that a person who is transgender was admitted to either ward we would endeavour to provide a single room for them.
NHS Western Isles provided a copy of its broad brush Equality and Human Rights Policy, applicable to all protected characteristics.
Conclusion
Mixed sex wards should be a thing of the past by now. They are yet another example of a broken pledge.
Nicola Sturgeon MSP, SNP health spokesperson, The Herald, 7 January 2003
The commitment to single-sex hospital accommodation in Scotland dates to the earliest days of the new Scottish Parliament. Since then, the political backdrop to the debate has, however, changed beyond recognition, principally due to the mainstreaming of gender self-identification policies by Scottish public bodies, and the prioritisation of gender identity over sex. In 2004 a Scottish Executive Minister could categorically state the number and location of mixed-sex wards in Scotland; in 2022 this is no longer the case.
As the preceding analysis shows, the problem of mixed-sex wards is still very much alive in Scotland; albeit now veiled by language that misdirects. NHS staff in two health boards, included Scotland’s largest, are instructed to advise female patients to disbelieve what they can clearly see, and that “there are no men present”. This is institutional coercive control: it is denying facts, distorting reality, and leaving women to question themselves, unable to trust their own perceptions and judgements when they are already in a vulnerable state.
NHS Ayrshire and Arran set out a scenario in which a female patient who complains about the presence of a male is compared to a racist or a homophobe. In its advice for supporting staff, the same board suggests certain faiths are more likely to be personally prejudiced towards trans people.
Scotland’s health boards are largely silent on the single-sex exceptions in relation to the placement of transgender patients. The NHS Tayside policy states that a meeting was held to discuss the recent EHRC guidance and the exceptions; but its policy fails to apply them, rendering its single-sex accommodation policy a de-facto mixed-sex policy in some situations. NHS Highland confidently but inaccurately asserts that refusing to place a trans identified male (or vice versa) on an opposite sex ward would be discriminatory. Such legal omissions and inaccuracies are most likely amplified by uncritical policy transfer, with policies cut and pasted between health boards, and reliance on lobby groups for policy development. At least one NHS policy (NHS Forth Valley’s on supporting staff) is directly co-authored by the former manager of the Scottish Trans Alliance.
Ministers state that the Scottish Government supports use of the single-sex exceptions, at the same time as asserting as policy that ‘trans women are women’, the position it took in a court case last year. It is perhaps unsurprising then that Ministers have chosen to delegate all accountability and responsibility in this area, leaving others to square the circle. In practice, this means, nearly two decades on from the early post-devolution debates, that women who are sick, vulnerable, sleeping, or in a state of undress, still cannot be guaranteed single-sex hospital accommodation in Scotland. (There has been greater debate about this issue recently at Westminster. In April, the then Secretary of State for Health urged NHS bosses to take account of the new EHRC guidance, having previously ordered a review of single sex ward policies, doubtless prompted by reports of experiences like that of a woman who was held in a secure psychiatric ward in a Lancashire hospital.)
As evidenced by the analysis above (and in other policy areas) laws and policies aimed at protecting women in Scotland are already in a perilous state. MSPs should be clear that the Gender Recognition Reform Bill can be confidently predicted to put these policies beyond repair and signal the end of single-sex services for women, unless two major amendments are made to the Bill. The Bill needs to state that a GRC issued under the new system will not change if someone counts as a woman or a man for the purposes of the Equality Act, and that the privacy protections in section 22 must not be allowed to interfere with operation of single sex services. Without these changes, the Bill will cement into law the principle that if a man says he is a woman, society should see and treat him as such, even in the most sensitive contexts, and the exceptions under the Act will become a dead letter.
This will not be an accidental effect. Pressure for the self-declaration of legal gender is part of the same project which has led to the outcomes described here, as well as previous calls to remove the Equality Act exceptions. These moves are all related, all rooted in the belief that, as a matter of the highest moral duty, we should cease to care about another person’s sex, however obvious it may be, and however much that would usually matter to us in any context, whenever another person declares that they have a different gender identity. This is the belief which finds its purest expression in the policies of NHS Ayrshire and Arran. At political level it is most clearly reflected in the position taken by the Scottish Green Party throughout the Bill process.
If they wish to avoid the disappearance of single sex hospital wards in practice, MSPs should not vote for the Bill as it stands. They should insist, at minimum, on inserting a legal firewall between the Equality Act and GRCs issued under the new Scottish system, as well as changes to the privacy protections that make sure these do not get in the way of single sex service providers.
Appendix 1: Scottish regional health board populations
| Health board | Population (2021 mid-year estimate) |
| Greater Glasgow and Clyde | 1,185,040 |
| Lothian | 916,310 |
| Lanarkshire | 664,030 |
| Grampian | 586,530 |
| Tayside | 417,650 |
| Fife | 374,730 |
| Ayrshire and Arran | 368,690 |
| Highland | 324,280 |
| Forth Valley | 305,710 |
| Dumfries and Galloway | 148,790 |
| Borders | 116,020 |
| Western Isles | 26,640 |
| Shetland | 22,940 |
| Orkney | 22,540 |
1 The URL now links to a version of this document which was updated in June 2022, however the internet archive Wayback Machine shows that the previous version was updated in June 2018.