NHS: Single-sex Spaces for Staff

Baroness Merron Excerpts

Thursday 1st May 2025 Grand Committee

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I thank the noble Lord, Lord Arbuthnot, for bringing this issue before the Grand Committee, and all noble Lords, particularly the two Front-Bench spokespersons, for the tone, which I also wish to impart to this important debate. A noble Lord said that we want to do the right thing, and I endorse those words. We heard a call for kindness, compassion and common sense throughout; again, that is absolutely the hallmark of how the Government are approaching this. Last but not least, I thank my noble friends Lady Griffin and Lady Levitt, who were kind enough to bring their own experiences and that of their families into the Room. It is always so important that we remember that we are talking about people here.

I say at the outset that the Government believe that NHS staff deserve to be treated with dignity and respect at work. This includes providing single-sex spaces. The noble Baroness, Lady Fox, set out that position very clearly. The Supreme Court has now ruled that sex means biological sex in the Equality Act, and with regard to the legal definition of a woman for its purposes. I heard the frustration of the noble Baroness, Lady Browning, that this was required, but the ruling brings clarity and confidence. It says to service providers and others that they must follow the judgment. That is the guiding light: this is the law, and we expect all public service bodies to comply with it. I can assure noble Lords that the Government are looking at ways to support public bodies in doing so.

I want to state clearly that trans people must have access to the services that they need in the broadest sense, and that they are also provided with protections under equality law. Access will need to be in line with the law.

I heard my noble friend Lady Smith of Basildon, the Lord Privy Seal, say on BBC Radio 4 recently that there is nothing that cannot be dealt with, with kindness, compassion and a bit of practicality and calmness—I emphasise that last word. In a practical sense, dealing with matters of access, many examples of which have been raised in this debate, may not be the same in all circumstances, and relevant organisations will need to look carefully and sensitively at these issues. I appreciate that implementing changes may generate some operational challenges and have financial implications, but, in my view, it is not beyond the ability of the NHS to find a path through that resolves these issues in a way that ensures the safety and dignity of patients and of staff. Noble Lords have rightly paid tribute to the work that staff do, and we are absolutely here to respect and support them.

The Equality and Human Rights Commission has committed to issuing a new statutory code of practice, and all service providers would be expected to comply with it. On the EHRC, which my noble friend Lady Levitt in particular drew attention to, it is, as we know, an independent body. To remind us, it has

“the responsibility to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote the human rights of everyone in Britain”.

As I mentioned, in the light of the judgment, the EHRC has committed to produce an updated code of practice by the end of June for ministerial approval—I heard many calls for ministerial involvement, and I hope that that response will be helpful—following a public consultation. The EHRC update that noble Lords have referred to is interim and provides its reflections on the Supreme Court ruling. I wish to emphasise to my noble friend and noble Lords that it is not official guidance at present, but I reiterate that employers and other duty bearers have to follow the law and should take appropriate specialist legal advice where they need to. I hope that will be helpful, and I am sure that my noble friend will engage in the consultation on this important matter.

The noble Lord, Lord Arbuthnot, and the noble Baronesses, Lady Ludford and Lady Jenkin, referred to the Darlington nurses. I am sure that noble Lords understand that I will not go into the detail of that specific dispute, as it is an ongoing legal matter, but I can confirm that the Secretary of State, Wes Streeting, met with representatives last year and has been in further contact with them since to understand any further concerns. As I have already said, the Government have called for, and continue to call for, the protection of single-sex spaces based on biological sex. The ruling provides added certainty—I will put it that way to the noble Baroness, Lady Browning—on this matter, and Darlington Memorial Hospital, along with all other public service providers, must comply with the ruling.

The noble Lord, Lord Arbuthnot, reference to the matter of single-sex spaces for patients, although the debate relates to staff. The core principle governing this issue is that providers of NHS-funded care should have a zero-tolerance approach to mixed-sex accommodation, except where it is in the overall best interests of all patients affected. The reason for saying that is, of course, that there can be times when there is so much pressure on accommodation that there has to be common sense and flexibility in the interim. This aligns with the NHS constitution, in which the NHS pledges that patients admitted to hospital

“will not have to share sleeping accommodation with patients of the opposite sex”.

Fundamentally for me, as the Patient Safety Minister, this issue affects some of the most vulnerable patients, such as those in mental health settings. It is imperative that we get this right to tackle sexual harassment and violence in hospital care settings, for which we also need zero tolerance.

The noble Baroness, Lady Browning, the noble Lord, Lord Arbuthnot, and others raised the pace of change. NHS England is revising its guidance in line with the ruling, and this will be done in a way that respects the dignity and safety of trans patients, as well as of women. I make this point particularly as the noble Baronesses, Lady Ludford and Lady Nicholson, referred to guidance; this is how it will be dealt with. The intention, confirmed by the Secretary of State, is that the NHSE guidance will be published before the summer. I assure noble Lords that we will work with NHSE on this, and that any guidance will need to align with the EHRC’s statutory code of conduct. Noble Lords will understand that a number of points are coming together.

I would very much like to pick up some of the points that noble Lords were good enough to raise. My noble friend Lady Griffin asked about those who have a gender recognition certificate. Trans people are protected from discrimination and harassment in the Equality Act. That does not change. Those with a GRC are still recognised in their acquired sex and gender in other circumstances, unless specific exceptions apply.

The noble Baroness, Lady Ludford, asked about the Health and Safety Executive in respect of employers that may be operating unlawfully. I simply emphasise that all providers have to follow the Supreme Court ruling.

The noble Baroness, Lady Jenkin, referred to NHS Confederation guidance, and there was reference throughout, in addition to the Darlington nurses, to the Scottish case of Sandie Peggie. I know noble Lords understand that it is not possible for me to comment on that case. However, on guidance, the noble Baroness, Lady Jenkin, simply demonstrated the need to get language right throughout. That is exactly what will happen.

My noble friend Lady Kennedy raised a number of cases of violence towards trans women, often by men. How we protect trans people from hate crime is a very important point that we must be very aware of and alert to, and act on. Strong protections remain in place for all communities to live free from discrimination. There is zero tolerance for hate crimes of any kind, and we will support the police in taking the strongest possible action against perpetrators of these abhorrent offences.

The noble Baroness, Lady Burt, and my noble friends raised concerns about the fear that trans people are facing. There are rightly laws in place to protect trans people from discrimination and harassment. I want to acknowledge—the noble Lord, Lord Kamall, made this point well—that, although those laws are in place, I am absolutely aware of their fear, uncertainty and concerns. This is not a situation that we would wish to continue; dignity and respect for everyone must run throughout.

The noble Lord, Lord Kamall, asked what the guidance on single-sex wards might look like. We will update those policies, and their detail is receiving a lot of attention. I cannot comment on the specific details, but I look forward to the noble Lord and your Lordships’ House being made aware of what is in that guidance. We are always open to improvement.

I thank noble Lords for their contributions and the noble Lord, Lord Arbuthnot, for instigating this debate. I look forward to working on it further.