NHS: Single-sex Spaces for Staff

Lord Arbuthnot of Edrom Excerpts

Thursday 1st May 2025 Grand Committee

Asked by

[Lord Arbuthnot of Edrom]

To ask His Majesty’s Government what steps they are taking to ensure all NHS staff have sufficient access to single-sex spaces.

[Lord Arbuthnot of Edrom (Con)]

My Lords, if there is any area of the country that is greatly affected by the Supreme Court judgment, it is the NHS: one of the largest organisations in the country, with over a million employees working long hours, at the most horrendous times of the day and night, in difficult, stressful conditions—needing to change into and out of scrubs, and to rest when they can.

I am most grateful to the charity Sex Matters for its briefing on this important issue, and to several other organisations. I am also grateful to noble Lords and noble Baronesses for taking part in this most important debate.

As I understand it—I trust that I shall be corrected if I am wrong—hospitals, as service providers, can provide a mixture of joint, mixed-sex and single-sex spaces for patients, and this is what they do. But this debate is about the provision for staff. As employers, hospitals are required under the Workplace (Health, Safety and Welfare) Regulations 1992 to provide single-sex spaces.

Yesterday, in answer to a Written Question, the Minister in another place, Karin Smyth, said:

“Single-sex spaces are protected in law and will always be protected by the Government. This is the law, and we expect all public service bodies to comply. The recent Supreme Court ruling in the For Women Scotland case has provided much needed confidence and clarity for the National Health Service to adapt its policies to ensure that same-sex spaces are always protected. This includes NHS England’s review of the Delivering same-sex accommodation guidance, as well as providers’ policies on same-sex spaces for staff”.


Well, that is good. She talks about the need for adaptation of policies, because current NHS guidance, which goes back to 2019, says:

“Trans people should be accommodated according to their presentation: the way they dress, and the name and pronouns they currently use”.


The Supreme Court judgment sets out the law on this, not just as it is now but as it has always been. It is clear from that judgment that, where single-sex accommodation is provided, the NHS guidance I just referred to puts the NHS in breach of the law. As we know, the Government have said that they are determined to abide by the law. I break in here to point out how welcome that is and what a welcome contrast it is with the behaviour, on occasion, of the previous Government, who I from time to time supported.

There are several examples of unlawful policies being followed by health trusts. Leeds Community Healthcare’s policy says:

“Trans people are entitled to use single sex facilities in accordance with their gender identity”.


No, they are not. I shall not go through more because others want to speak.

One issue is the speed of the change that must now happen. NHS England says that it is reviewing current guidance on same-sex accommodation and, as part of this process, will consider all relevant legislation and the ruling. That sounds a rather leisurely process. How long will it take to adjust this? Specifically, will the Government now contact all health trusts, asking them for an urgent commitment to comply with the law and saying that they need to tell their staff that it is illegal to allow biological men into single-sex female spaces?

A failure to act with speed would lay health trusts open to litigation involving harassment and discrimination. Some of those legal cases, of course, are already under way and will be affected by the judgment, such as Sandie Peggie’s case in Fife—which I know is not within the Minister’s remit—the Darlington nurses and Faye Russell-Caldicott’s case. When money in the NHS is in short supply, as it always is and always will be, we should not be spending it on damages for this sort of thing.

The key issue in all this is that the provision of single-sex spaces is of particular importance to women. This is not surprising, since one woman in four has been raped or sexually assaulted as an adult and 98% of sex crimes are committed by biological men. Victoria McCloud, the retired judge who is trans and says they are taking the Government to the European Court of Human Rights on this issue, says that it is not safe for women to use men’s toilets. It surely follows that it is not safe for biological men to be in women’s toilets.

The solution to this is definitely not that all accommodation should be changed to neutral-sex accommodation. In swimming pool and sports centre changing rooms—a different though related topic—nearly 90% of sexual assaults on women occur in unisex facilities. I do not suggest or believe that this threat comes from trans women, but it would not be progress if unisex facilities became the primary type of changing provision.

An issue that we need to face is enforcement. How will biological men be stopped in practice from using female-only toilets and changing rooms? Asked if the latest guidance meant transgender people would be banned from the lavatories of the gender they identified as, Pat McFadden MP said,

“look, in reality, when you say ban, am I going to be standing outside toilets? I’m probably not. There isn’t going to be toilet police, but that is the logical consequence of the court ruling and the EHRC guidance”.

I think he belittles the effect of law in this country. We want to do the right thing, and by and large we do and will, but it will no longer be possible to be sued for complaining that there is a biological man in a women’s changing room.

I do understand how difficult this announcement of the law will be for some. It will require some biological men who are trans or cross-dressers, and who have previously been using female toilets and changing rooms, now to use male toilets and changing rooms. For some that will cause real problems, but it has to be balanced against the real problems that have previously been created by the opposite practice—that of ignoring the biological sex in favour of the chosen gender identity. The Supreme Court’s judgment was going to cause such problems whichever way it went.

I welcome the clear statement in the judgment of the absolute prohibition of discrimination against trans people on the basis of existing law. All people, whatever their gender identity, should be treated with respect under the law. We will get through this with the kindness, tolerance and respect for others, and for the law and the judges, which have been the hallmark of our country for generations, but which have sometimes been lacking in the debate on this subject. It is time for that to change.

--- Later in debate ---

[Lord Kamall (Con)]

My Lords, I thank my noble friend Lord Arbuthnot for bringing this important debate, and all noble Lords and noble Baronesses who spoke. It is fair to say that this topic has generated a variety of strong opinions on all sides, both in this House and outside. Whatever our opinion, I hope that, in this House and elsewhere, we can approach such a discussion on single-sex spaces and single-sex accommodation with humanity and civility, respecting the dignity of individuals while recognising the concerns that have been raised on all sides of the debate.

In considering the recent Supreme Court ruling on the definition of a “man” and a “woman” in the Equality Act 2010, it is important that we are clear about what it says, so can I check the Government’s understanding of that? Is it true, or is it interpreted, that the judgment defines only a “woman” and a “man” so far as they relate to that specific piece of legislation? Is it correct to say that, although it may or may not set a legal precedent, it does not provide definitive definitions across all areas of law? Can the Minister clarify that?

Before the Supreme Court ruling, the guidance for NHS hospitals required them to accommodate patients based on their stated gender: people were not required to present a gender recognition certificate to demonstrate their preferred gender. Since the Supreme Court ruling, as other noble Lords have said, the Equality and Human Rights Commission has updated its guidance on the provision of single-sex spaces and has specifically stated that the NHS has to update its policy. We looked for information on the NHS website and it is not available at the moment. Can that be taken as a sign that the department or NHS England is updating that policy? That is my second question to the Minister: is the NHS currently updating policy on who can be accommodated in single-sex wards in hospitals? If it is doing so, can she share with the Committee any details as to what that updated guidance might look like, or is it too early to say? Maybe her officials can help.

The real issue here is how the NHS can ensure that it strikes a careful balance between complying with the Supreme Court judgment and the guidance from the EHRC protecting the rights of women, and ensuring that all patients, whether they are transgender or not, are treated with the dignity they deserve. I look forward to the Minister’s response.

[Lord Arbuthnot of Edrom (Con)]

Before the Minister stands up, we have the benefit of having the chair of the EHRC in the Room with us. I wonder whether it is your Lordships’ wish that we hear from her.

[The Deputy Chairman of Committees (Viscount Stansgate) (Lab)]

My Lords, I am in the hands of the Committee, but the fact is, as Members will know, people are entitled to ask to speak in the gap, but the gap had already been passed by the time the Member concerned sought to do so. I can say no more at this stage.