Health and Care Bill

Debate between Baroness Jones of Whitchurch and Baroness Barker

Committee stage
Wednesday 9th February 2022 Lords Chamber

[Baroness Barker (LD)]

My Lords, the noble Lord, Lord Hunt, used the important word “contention”—a contention that there is a tension between the rights of women and those of trans women. He and I disagree about that because I believe that they both deserve to be treated properly and respectfully. I believe that the Equality Act enables that to happen.

It is that Act which enables there to be single-sex provision. It is precisely because there are occasions and times when it is important for that to happen that we have to embody it in law, otherwise it could not exist. That is why under the Equality Act there is a specific statement that there should be safeguards in place, that there are special circumstances where treatment needs to be sex-specific, and that where it is assessed that a trans person should be put in an otherwise gendered ward, such departures are allowed but they need to be proportionate to achieving “a legitimate aim”. Like my noble friend Lady Brinton, I do not believe that making assumptions about a person because of the way they look is a legitimate aim.

I have listened carefully to all the speeches that have been made, and they have contained some very powerful contentions and assertions. What they have not contained is any evidence at all that this is a significant problem in the NHS. The amendments would cause a significant problem in the NHS—for all patients, not just trans patients, if one thinks through the implications of what has been written in them.

Day to day, NHS staff routinely have to deal with patients of all sorts, with all sorts of difficult problems, and as professionals they make judgments day in, day out about what is appropriate care. Unless and until there is significant evidence that backs up the assertions and contentions of the noble Baroness, Lady Nicholson, and the noble Lord, Lord Blencathra, I believe we should leave them with the guidance that has worked perfectly well up till now.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I intend to be brief because we do not believe that these two amendments are either necessary or appropriate in the context of the Health and Care Bill. If the Equality and Human Rights Commission is conducting a wider review into single-sex services then we should consider those issues at that time, but not in the context of this Bill.

I agree with the noble Baroness, Lady Brinton, that the Equality Act 2010 and the 2019 NHS guidance Delivering Same-Sex Accommodation already provide an effective mechanism for inclusion in the context of single-sex wards. The two amendments seek to cut across long-standing provisions in both the Act and the guidance. There is no substantial evidence to suggest that the status quo is not working and that NHS professionals are unable to use the existing guidance, which clearly sets out the principles and practice to be followed.

We also consider that the amendments could do harm if implemented, because they would create a blanket rule requiring trans women to be treated on men’s wards and trans men to be treated on women’s wards. At best, that would create an environment contrary to the dignity and well-being of the patients. At worst, it would leave trans patients at the risk of harm and abuse by outing them in a public context at a time when they are particularly vulnerable.

Like other noble Lords, we have received a detailed briefing from Stonewall imploring us to oppose these amendments. Given that we do not consider that the Bill is the right place for the consideration of these issues, we will not be lending our support to the amendments.