Since the April 2025 Supreme Court judgment on the definition of sex under the Equality Act 2010, the BMA has been deeply concerned about the potential harms that the ruling would have on our trans and non-binary members, colleagues, patients and wider community.

We have previously written to the EHRC (Equality and Human Rights Commission) and NHS England raising these concerns and calling on them to ensure any new or revised guidance must clearly set out how equitable access to healthcare and inclusive spaces for trans and non-binary people in healthcare settings can be achieved.

The guidance published by the EHRC did not mitigate our concerns. We published a statement in response to the EHRC’s code of practice for services, public functions and associations, where we set out the potential devastating repercussions on trans patients’ access to healthcare, the ability of trans healthcare staff to conduct their everyday duties and the NHS’s ability to protect the rights and dignity of their trans patients and staff. We also emphasised the unworkability of implementing this guidance as it does not reflect the reality of how NHS services are delivered and would require significant amounts of NHS funding.

NHS England has now published two further guidance documents for NHS organisations:

– Privacy, dignity and safety in hospital accommodation – revised guidance on same-sex accommodation for patients

– Guidance on NHS staff facilities – new guidance on the provision and use of NHS staff facilities.

We are deeply concerned that this high-level guidance will result in local policies that are exclusionary to trans and non-binary staff and patients. It will affect their ability to access and work in the NHS and have negative consequences for cisgender people. We are calling for urgent clarity from NHS England on how employers can implement the guidance in a way that is safe and inclusive of trans and non-binary people, who are already one of society’s most marginalised groups and who are becoming ever more fearful of harassment and discrimination when accessing healthcare.

The expectation that doctors may have to reveal the gender history of their patients is deeply concerning. Not only is this distressing for patients and opens them up to harassment but we have serious concerns about how this will be legal for those with gender-recognition certificates.

In addition, NHS services are ill-equipped to provide the facilities this guidance expects, with doctors needing much greater support to ensure effective and appropriate clinical decision-making can take place. The expectation that hospitals can find additional spaces or side rooms for trans people is unrealistic given existing capacity pressures, with thousands of people each week receiving care in corridors across the NHS because of insufficient ward capacity; the NHS does not have space to manage patients with infectious diseases or immune compromise, let alone to manage expectations around transgender patients.

The NHS in England has a maintenance backlog of £17.3bn, so this is not an issue that is going to be resolved anytime soon.

All staff and patients deserve to be treated with equal care and to have access to safe, appropriate and accessible facilities. The BMA supports fair and equitable access for all trans and non-binary healthcare staff and patients to accommodation, services and care according to their gender, while ensuring their privacy, dignity and safety.

We do not believe the new guidance published by NHS England meets these standards and is therefore likely to have a negative effect on trans and non-binary people but the harm will not be limited to them. These guidelines, like transphobia itself, harm cisgender people as well as trans and non-binary people.

Cisgender people, often women who do not meet society’s narrow expectations of femininity, are already finding they are being challenged when they try to access the single-sex spaces the guidance would expect them to.

Employers have now been asked to review their local policies and facilities to align with the new NHS England guidance. When undertaking these reviews, we urge all employers to remember they are responsible for the health and wellbeing of all their staff.

Any revision of policies or services must be done in collaboration with trade unions and the trans and non-binary workforce and must be compatible with the NHS Constitution and the Equality Act and Human Rights Act.

NHS England has asked for employers to continue to foster workplaces that are safe, respectful and inclusive and free from discrimination and harassment – we welcome this, but NHS England must provide greater clarity to employers on how they can do this.

We understand that this is a deeply upsetting time for many of our trans and non-binary members and patients and would like to reaffirm our support and commitment to them. 

Resources for doctors and medical students in the UK

We aim to listen and engage with members who raise concerns with us. If you face discrimination or harassment at work, the BMA can provide support in the workplace – you can contact us or email directly at [email protected]

The BMA has a free 24-hour wellbeing service, available to all doctors and medical students and their dependants in the UK. You do not have to be a member of the BMA to access this service.