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LWD guidance notes for the NHS constitution consultation

NHS CONSTITUTION CONSULTATION

Respond to the NHS Constitution consultation!

England Only   I   Closes Tuesday 25th June 2024 (11:59pm)

Read the consultation here    I  Submit your response here

Whilst the elections dominate the headlines, it is crucial to remember that it will soon be business as usual! Please keep up to date with your consultation submissions (as an individual or an organisation), we have listed the relevant upcoming consultations here. They cover a range of issues from NHS hospital wards through to calls for evidence of organisations misrepresenting the Equality Act 2010.

We are asking our supporters to uphold women’ sex-based rights by responding to the NHS consultation, briefly or at length, but giving your broad support to the proposed changes. The NHS Constitution consultation is of particular concern to us as it relates to NHS single-sex provision and services.

The consultation has thirteen sections. However, there are two which of particular relevance to our work:

  • Sex and gender reassignment
  • Technical changes to reflect the Equality Act 2010

We hope you will be able to make a response to those sections, using the guidance notes below. When completing the online survey, you will have to answer a number of questions about yourself (including about your ‘gender identity’ – just skip). The survey goes through each of the thirteen sections. Just click ‘Next’ until you get to the one(s) you want to respond to.

Sex and gender reassignment

Question One) Access to health services

The proposals are good, and make clear that they “are defining sex as biological sex”. Being specific about intimate care is important. Hence, you will probably want to ‘agree’ with the addition of the pledge: “Patients can request intimate care be provided, where reasonably possible, by someone of the same biological sex”.

In the ‘further views’ optional box, you might want to point out that the outline refers only to patients asking for such care. The pledge merely says patients CAN request; it does not cover making clear to patients that this option is open to them. Many will not ask unless explicitly told that they can do so.

Question 2) Single-sex accommodation

The general outline seems clear and sensible, leading to this proposed additional wording:

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.”

When we are at our most vulnerable Report by Prof Jo PhoenixAlthough not made explicit here, it seems that the ‘where appropriate’ caveat means that, for example, in intensive care units it is not possible to segregate patients by sex. It is reasonable to assume that there is little risk in an intensive care unit being mixed sex and is the only way to ensure the 24-hour care provided to all who need it.

Annex B of the “Delivering same-sex accommodation” guidance explicitly says that individuals should be accommodated ‘according to their presentation’, and the name and pronouns they use. This is entirely at odds with what is being proposed in the new constitution. Lord Markham in his written response to a question from Baroness Nicholson on 26 April 2024, stated that this guidance was being updated, and the wording suggests that the new constitution would override the previous guidance. Please raise this particular point in the ‘further views’ box.

You might also reference Professor Jo Phoenix’s 2023 report When we are at our most vulnerable‘ which exposed 6500 rapes and sexual assaults of women (and children) in hospitals in England and Wales over the last four years. This makes the necessity of single-sex provision all too clear.

Question 3) Access to health services

It is something of a relief to read the statement that “Meeting the needs of patients includes respecting the biological differences between men and women, such as sex-specific illnesses and conditions.”

The proposed addition states: “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.”

This question, as elsewhere in the section, makes frequent reference to the Equality Act wording concerning “a proportionate means of achieving a legitimate aim”. It might be worth pointing out how important the wording of the Equality Act is, and the importance of ensuring clear definition of the term ‘sex’ i.e. that it is biological sex.

Technical changes to reflect the Equality Act 2010

Changing the wording of the NHS Constitution to bring it into line with that of the Equality Act does of course make complete sense. However, given the way that the word ‘sex’ in the Equality Act has been misused, to claim that it refers to ‘gender identity’ etc, these changes in the NHS must be matched by the clarification of the Equality Act, called for by the EHRC. So you may wish to state this in the additional views box.

Submit here

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