What does the law say about trans inclusive hospital care?

It’s the responsibility of everyone working in a hospital to act in a way that does not break, or risk breaking, the law. Whilst many laws and policies apply to the treatment of trans people in hospital, The Equality Act 2010, The Gender Recognition Act 2004, and UK GDPR are particularly relevant.

The Equality Act 2010 states that:

“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”

Equality Act 2010, S7(1)

It is important to note that protection under the characteristic of ‘gender reassignment’ applies to trans people whether or not they’ve undergone any medical aspects of transition or have been given any diagnosis in relation to them being trans. The protected characteristic of ‘gender reassignment’ applies to trans people of any age.

This means that it is unlawful to discriminate against, harass or victimise any trans people.

The Equality Act 2010 makes certain exceptions in relation to trans people. Of relevance to hospitals is the single-sex services exception. With regards to single-sex services (including single-sex spaces), the Act states that people may be excluded on the basis of gender reassignment if ‘the conduct in question is a proportionate means of achieving a legitimate aim.’ (Equality Act 2010, pt7, s28(1)).

The Public Sector Equality Duty (Equality Act s149) places additional duties on public bodies, such as the NHS. NHS hospitals have a duty to:

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

Article 5(1d) of the UK GDPR requires that personal data shall be:

“accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay.”

Of course, all aspects of the UK GDPR apply to trans people, but the accuracy principle is of particular relevance in relation to updating names and sex markers on your patients’ medical records.

The privacy of trans people with a Gender Recognition Certificate (GRC) is protected by section 22 of the Gender Recognition Act 2004. The Act states:

“It is an offence for a person who has acquired protected information in an official capacity to disclose the information to any other person.”

Gender Recognition Act 2004, s22(1)

In a hospital context, this means that it’s unlawful to disclose a patient’s trans status to others:

  1. If they have a Gender Recognition Certificate; and
  2. If you learnt that the patient is trans through the course of your work.

If you have permission from the patient in question, it would of course be fine to share their trans status with colleagues that need to know. It’s  important that a colleague would only need to know a patient’s trans status if it relates to their clinical care.

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