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LWD submission to the NHS Constitution Consultation

NHS Logo. Labour Women's Declarations submission to the NHS Constitution Consultation

NHS Constitution: 10 year review – Department of Health & Social Care

Deadline: Tuesday 25th June 2024 (11:59pm)


Consultation seeking views on proposed changes to the NHS Constitution. The NHS Constitution applies to all those who use its many services, its staff and providers. During this consultation exercise, we want to hear from people across this broad spectrum, to help us define and enshrine the values of the NHS for years to come.


LWD responded to the following consultation sections that relate specifically to our campaign priorities


Sex and gender reassignment


We propose adding a pledge to ‘Access to health services’ to state that:

“Patients can request intimate care be provided, where reasonably possible, by someone of the same biological sex.”


We are in complete support of this.  However, it is a concern that this is worded as ‘can request’, which implies that the patient must know that they are entitled to ask and feel empowered to do so.  We therefore suggest that this pledge includes a commitment to informing patients of their right to ask for same-sex intimate care, and inviting them to consider whether they wish to make such a request.  

We assume that ‘where reasonably possible’ is intended to cover such contexts as Intensive Care Units and similar situations, where it may at times not be possible to provide, given the intensity of the work with all patients.  We are not clear in what other contexts it might not be possible to provide same-sex intimate care.

We propose adding additional wording to the pledge on sleeping accomodation to state:

“if you are admitted to hospital, you will not have to share sleeping accommodation with patients of the opposite biological sex, except where appropriate. The Equality Act 2010 allows for the provision of single-sex or separate-sex services. It also allows for transgender persons with the protected characteristic of gender reassignment to be provided a different service – for example, a single room in a hospital – if it is a proportionate means of achieving a legitimate aim.”


Currently, in Annex B of of the “Delivering same-sex accommodation” guidance, it is stated that patients should be accommodated ‘according to their presentation’, and the name and pronouns they use.  This has caused considerable concern for a long time, as it enables men who choose to wear make-up or have a typically female name to be accommodated in women’s wards, and for it even to be denied that by hospital staff that the individual is male.  SCOTTISH DAILY EXPRESS.  We assume that this guidance document will be withdrawn immediately, and the far more appropriate approach suggested here being the only guidance.

As we have said in response to the previous question, we are assuming that ‘where appropriate’ merely means that such provision as ICU would necessarily continue to be mixed sex.  If there are other contexts, we suggest that this is made clear.

We propose adding a right to ‘Access to health services’:

“You have the right to expect that NHS services will reflect your preferences and meet your needs, including the differing biological needs of the sexes, providing single and separate-sex services where it is a proportionate means of achieving a legitimate aim.”


We are relieved that this section is totally clear about the fact that biological sex, and the physical and physiological differences consequent upon there being two different sexes, is so clearly stated, alongside the need for clear language understood by everyone.

 The use of the wording of the Equality Act 2010 (e.g. ‘a proportionate means to achieve a legitimate aim’) and the definition of sex as biological sex reinforces the need for the Equality Act to be made clear.

Technical changes to reflect the Equality Act 2010


We propose changing the language from ‘gender’ to ‘sex’, ‘religion, belief’ to ‘religion or belief’, and ‘marital or civil partnership status’ to ‘marriage and civil partnership status’ so that the amended text reads as follows.

Under principle 1:

“It is available to all irrespective of sex, race, disability, age, sexual orientation, religion or belief, gender reassignment, pregnancy and maternity or marriage and civil partnership status.”

Under access to health services:

“You have the right not to be unlawfully discriminated against in the provision of NHS services including on grounds of sex, race, disability, age, sexual orientation, religion or belief, gender reassignment, pregnancy and maternity or marriage and civil partnership status.”


Ensuring that the wording of the NHS Constitution matches that of the Equality Act 2010 is, of course, an obvious and necessary amendment.  However, in this context it makes it abundantly clear that the misinterpretation of the EA, conflating ‘sex’ and ‘gender identity’, must cease, by the next government undertaking the clarification in law suggested by the EHRC, welcomed at the time by both main parties and a key policy issue for voters during the General Election.



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