Tory ban on trans women on hospital wards ‘unlawful and impractical’ say legal experts

A discrimination barrister has said government plans to ban trans women from female hospital wards are “unlawful”.

Others have said exclusion could worsen the shortage of beds in hospitals, while there has also been disbelief that Conservatives have prioritised trans people over the current NHS strikes which are impacting the service.

Health secretary Steve Barclay announced in a speech at the Conservative Party conference in Manchester on Tuesday (3 October) that he wants to stop trans women from being cared for on single-sex wards in NHS hospitals.

Suella Braverman later sparked fury among LGBTQ+ activists when she told Sky News that trans women – who she referred to as “biological men” – have “no place in women’s wards”.

The proposal has been met with considerable backlash – and according to barrister Robin White, it could be both unlawful and unworkable.

If the government says it’s excluding trans women from women’s wards who have the “protected characteristic of gender reassignment”, that could constitute “unlawful direct discrimination”, White, who is an expert in employment and discrimination law, told PinkNews.

“It is possible to justify providing services for trans people in a separate way – which would otherwise be unlawful indirect discrimination – but you have to be able to justify that, and justification requires it to be a proportionate means of achieving a legitimate aim.”

‘Unevidenced, unlawful and impractical’

According to White, it would be difficult for the government to argue that it’s a “legitimate aim” when there is “no evidence base” to show that trans women have posed a risk to cisgender women in hospitals.

The government could even run into legal difficulties if it instructs hospitals to house trans women in private rooms.

“Some people might think having a private room is an advantage, and that’s fine – therefore they’re not feeling a disadvantage – but to be forced into separate facilities if a trans person didn’t want that, that would be an unlawful detriment.”

White’s position is backed up by Jolyon Maugham, director of the Good Law Project.

“The proposals seem to us to be unevidenced, unlawful and impractical,” Maugham told PinkNews.

“The last thing the NHS – already suffering a shortage of beds – needs is further categories of segregated wards with all of the waste of staffing and space that comes with them.” 

Banning trans women in female wards a ‘distraction’

Concerns have also been raised about how practical the government’s plan is. In a statement, the British Medical Association (BMA) described it as a “distraction”.

Professor Phil Banfield, BMA council chair, said: “Mr Barclay’s announcement on plans to change the NHS constitution isn’t ‘common sense’ as he claims, it’s a distraction from serious NHS problems and has the potential to incite discrimination and harassment of transgender and non-binary patients, limiting them from accessing vital NHS services.

“All patients deserve dignity and access to healthcare, which includes having their identity respected. Doctors providing care have been and will continue to make decisions with our patients regarding what care best meets their individual needs.”

Banfield said it was “beyond belief” that Barclay announced the plans on the second day of the biggest industrial action the NHS has ever seen, when his attention could have been on other issues its currently facing.

He also said the plan would require NHS trusts to follow guidance that breaches the Equality Act and cause “hurt and harm to trans patients”.

“Hospital Trusts should not follow unlawful guidance, and this is another, frustrating, example of the government’s refusal to listen to and value the views and opinions of those who work within the NHS.

“Common sense would address the core issues that are impacting NHS staff and that’s why we are striking today to protect patients.”

PinkNews has contacted Steve Barclay for comment.