The NHS thinks that sexual orientation is about being transgender

[FOIrequester]

That's the conclusion I have come to after reading the document they supplied in response to my FOI request for the Equality Impact Assessment for their 'Delivering Same-Sex Accommodation' policy.

They list each of the protected characteristics and how they think they will be affected by the policy. This is what they say about sexual orientation (my bold):

5.9. Sexual orientation– Significant as this is the reason the guidance exists.
a) Does the equality group face discrimination in this work area?
The guidance in this area is not new, it is clear on the legal position of trans patients in line with the Equalities Act 2010 and provides advice to staff on accommodating patients. The guidance exists to ensure all patients are treated in a way that protects their privacy and dignity.

pdf version can be downloaded from here:
www.whatdotheyknow.com/request/equality_impact_assessment_for_d_2#incoming-1488421

They also don't realise that the protected characteristic is "sex" not "sex or gender".

5.8. Sex or gender – Significant as this is the reason the guidance exists.

Well that doesn't make any sense at all!

Can I just big up Tameside General Hospital. Over in Manchester because my aunt is in there and she doesn't have any immediate family. So, loos - male, female, male disabled, female disabled. God bless 'me. I wonder how long they'll hold out?

That should have read "God bless 'em". I don't think She'd be up for blessing me. Pretty sure I'm on the Naughty List.

Maybe some hapless member of staff was chucked onto a Stonewall course and bamboozled with all sorts of terms and acronyms about demi boys and skoliosexuals and agenders and told that every time you question gender ideology, someone somewhere gets hurt - badly!! Oh and lesbians can have penises.
Then they had to fill out an impact assessment and couldn't quite remember all the details of these new fangled sexual orientations.

I'm just astonished that someone who doesn't understand the term "sexual orientation" was given the task of writing an Equality Impact Assessment. Also that nobody else involved in the publication of this document actually read it and noticed the error (I assume these sort of documents are written by committee rather than being the work of one single person).

Here's what they say about gender reassignment.

5.3. Gender reassignment– Significant given the subject matter of the guidance.
a) Does the equality group face discrimination in this work area?
The guidance in this area is not new, it is clear on the legal position of trans patients under the Equalities Act 2010 and provides advice to staff on accommodating patients. The guidance is clear that in situations where sensitivity towards trans patients occurs on a ward there may be some circumstances where it is lawful to provide a different service or exclude a trans person from a single sex ward of their preferred gender but only if this is a proportionate means of achieving a legitimate aim.

So they understand that gender reassignment is about transgender people, but they think sexual orientation is the same thing. And they think the reason the guidance was written was for the protected characteristics of sex and sexual orientation, but it is only 'significant' regarding gender reassignment.

But maybe that's it, that they think lesbians can have penises and that gender reassignment only covers people who have had genital surgery. That would explain it (I think).

Bloody Nora!!!

FOIrequester this beats "the dog that ate my homework" Welsh Equality Impact Assessment that you rooted out!

This is "the dog vomited all over the NHS Same-sex Accommodation Equality Impact Assessment" !

This needs to get out to serious journalists!

This is shocking - as you say I'm just astonished that someone who doesn't understand the term "sexual orientation" was given the task of writing an Equality Impact Assessment.

An EIA is currently being done for the forthcoming Bristol/Glos/Som/Devon NHS trans guidance (cost - just under 7k) - I really hope this is not the standard to expect.

This needs to get out to serious journalists!

Any ideas about how to do this?

Are you on Twitter? Sonia Poulton, Janice Turner, Joani Walsh might pick this up.

Are you on Twitter? Sonia Poulton, Janice Turner, Joani Walsh might pick this up.

I'm not, but if anyone who is wants to get this out to them, these are the links:

FOI request asking for the Equality Impact Assessment for their Delivering Same-Sex Accommodation guidance:
www.whatdotheyknow.com/request/equality_impact_assessment_for_d_2

NHS "Delivering Same-Sex Accommodation" guidance:
improvement.nhs.uk/documents/6005/Delivering_same_sex_accommodation_sep2019.pdf

Equality Impact Assessment:
www.whatdotheyknow.com/request/608694/response/1488421/attach/4/Equality%20and%20Health%20Inequalities%20Full%20Analysis%20Form%20Redacted.pdf?cookie_passthrough=1

Something that is quite odd about the front page of the EIA is that it appears to say draft on it, and all the pages have a faint green line through them. That's not what I'd expect from a completed official document, so it looks as though they have sent me an early draft rather than the final document.

None of this is reassuring at all.

The Equality Impact Assessment looks more and more bizarre the more I look at it. They seem to think that 'Delivering same-sex accommodation" is more about transgender people than about everyone else.

In the section which evaluates the effect of the guidance on the groups protected under the Equality Act, under 'Age', it says:

a) Does the equality group face discrimination in this work area?
No, the guidance is predominantly about placing patients in the right sex accommodation. The issue in relation to age is around sensitivity resulting from a lack of awareness and acceptability of trans patients by some of an older generation. If issues are raised by patients in this equalities group the guidance provides advice to staff on how to deal with such matters, it is fundamental to the MSA guidance that all patients should be treated in a way that protects their privacy and dignity. The guidance is clear that in situations where sensitivity towards trans patients occurs on a ward there may be some circumstances where it is lawful to provide a different service or exclude a trans person from a single sex ward of their preferred gender but only if this is a proportionate means of achieving a legitimate aim. This relates to all patients and not just those within one of the groups identified within the 2010 Act.

Under 'Religion or belief' it says the same, but replacing 'age' with 'religion or belief'.

The effect on "Trans people or other members of the non-binary community" is covered again in section 6.11.

And again, right at the end:
25. Contributing to the PSED and reducing health inequalities. How will the policy or piece of work contribute to the achieving the PSED and reducing health inequalities in access and outcomes?

The guidance is very clear on the treatment of those patients presenting as transgender or non-binary, it is based on the Equalities Act 2010 and should be upheld by any organisation providing health services.

They appear to think that the PSED is for the benefit of transgender and non-binary people, and not for anyone else.

This is under the heading 'Engagement and Involvement' towards the end of the document.

PART D: Engagement and involvement

11. Engagement and involvement activities already undertaken.
How were stakeholders, who could comment on equalities and health inequalities engaged, or involved with this work? For example in gathering evidence, commenting on evidence, commenting on proposals or in other ways? And what were the key outputs?

Engagement included joining the roundtable event to discuss the operational use of the guidance regarding Mixed-Sex Accommodation (MSA) in respect to caring for transgender patients on the 27th June 2019.

It appears from this that the only 'Engagement and Involvement' event was one in which the guidance in respect of transgender patients was discussed, and yet, according to their statement at the beginning of the Equality and Health Inequalities document, this was unchanged since the previous guidance regarding eliminating mixed sex accommodation in hospitals in 2009.

In terms of the MSA breach guidance, the revisions do not relate to the transgender policy in “Annex B: Delivering same-sex accommodation for trans people and gender variant children”. This is because there has been no change to the policy at annex B since originally published in 2009.

Original guidance here. Guidance about transgender patients is at the end (Annex E).
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/200215/CNO_note_dh_098893.pdf

More brilliant work FOIrequester

If you want to send it to journos the ReSisters network may be able to help. They have a good team who can pull together a press release or possibly contact them direct if you’d rather not do it yourself (totally understandable not wanting to take on additional work!!)

I’m absolutely appalled at the state of all this. It’s embarrassingly bad.

If you want to send it to journos the ReSisters network may be able to help.

I'm not that keen on putting myself in the spotlight, so I don't really want to contact the press myself, but I do think this needs to be seen more widely. But it hasn't generated much interest on here - I originally posted it on Friday and it was on page 2 before I posted this morning - so maybe it's not as interesting as I think it is.

I think it’s very interesting but also quite difficult to understand if you’re not already heavily involved in this sort of thing. It seems to me to be both hugely important and tricky to explain. I suspect most people don’t know what an EIA is, never mind what it should contain. Sorry, just musing! Hopefully a journo would be able to distil it down a bit?

Thanks for your input Badger. There have been some threads on here that go into a lot of detail about legal stuff which I often find hard to follow, so I was hoping for a bit more discussion on this, not least because I've found it difficult to understand everything in this document. I was hoping some of those more knowledgeable posters would turn up to help me out.

Particularly this bit I found confusing:

In terms of the MSA breach guidance, the revisions do not relate to the transgender policy in “Annex B: Delivering same-sex accommodation for trans people and gender variant children”. This is because there has been no change to the policy at annex B since originally published in 2009.

If there has been no change to the transgender policy, why is the Equality Impact Assessment so fixated on the impact on transgender people, to the extent that they think 'sexual orientation' means protection for transgender people?

Maybe my thread title should have been something like 'Help needed to understand FOI response'.

NHS Grampian and my EIA Request:

“Please send me a copy of your Equality Impact Assessment for you policy outlined in “Guide for Staff to help them meet the needs of Trans Patients attending for Hospital Care” for placing male bodied (male at birth) individuals on female wards. Please see attached the NHS Grampian booklet "Guide for Staff to help them meet the needs of Trans Patients attending for Hospital Care". There is no legal requirement for NHS Grampian to carry out an Equality and Diversity Impact Assessment on this document as this is intended as a guide.
Equality and Diversity Impact Assessments are legally required for policies, strategies and re-organisational proposals which are meant for the public domain and which have an implication in terms of any of the 9 "protected characteristics" of:
 Race
 Disability
 Age
 Sex (male or female)
 Sexual orientation
 Gender reassignment
 Pregnancy and maternity
 Marriage and civil partnership
 Religion or belief“

Could ask for the title to be changed? Although it’s entirely possible everyone’s just lost the will to live after that spousal veto thread

What I don't understand is why every other line says 'the guidance in this area is not new' instead of actually doing any analysis- it seems to be suggesting that it's a foregone conclusion that everything's fine on the basis the equality act exists and the reviewer is confident that staff will follow guidance to make sure everyone is happy.

Also, I find the suggestion that old people are more likely to be bigoted and need re-educating highly offensive - aside from being ageist in itself, it exposes the bias of the review writer (not sure who as they didn't even put their name to it!) in assuming that anyone who doesn't agree with their policy is automatically wrong and unreasonable.

Similarly, wrt religion, they assume the issue would be that some religious people are transphobic ("the issue in relation to religion and belief is around sensitivity resulting from a lack of awareness and acceptability of trans patients") - I'm pretty sure the majority of religious patients with concerns about trans people sharing a room with them will be around mixed-sex fraternising and not anything to do with trans people, but this hasn't even been mentioned. It just suggests religious people need to learn to think correctly instead.

And on 'sex or gender' as a protected characteristic, their analysis just says "it is clear what is and is not acceptable", so basically 'yawn, not this old chestnut, nobody cares anymore and no-one's going to read this so why am I even bothering typing it?'.

I just can't get over the fact that the issue of the protected characteristic of sex isn't a consideration in the provision of single sex accommodation being open to anyone who wants to be in there.

They appear to think that the PSED is for the benefit of transgender and non-binary people, and not for anyone else.

It certainly appears that way. Did they provide the wrong document?!

And then there's this

Can this work contribute to eliminating discrimination, harassment or victimisation?
If yes please explain how, in a few short sentences

The MSA guidance provides clear advice to staff on managing MSA breaches, this will ensure correct placement of patients according to their wishes. The guidance also makes it clear that there are circumstances when the wishes of other patients affected will need to be taken account of. Ultimately, the privacy and dignity of all patients is fundamental.

'According to their wishes?' Doesn't that make all accommodations mixed-sex by default, if it's up to the patient?

Sexequality

There is no legal requirement for NHS Grampian to carry out an Equality and Diversity Impact Assessment on this document as this is intended as a guide.

I think they are right here, although as I've already said, my understanding of legal stuff is far from comprehensive.

As I understand it, if a document is published as a 'guide' as opposed to 'policy', no Equality Impact Assessment is required, because it is expected that anyone using it as a guide to formulate their own policy will do their own EIA.

If they are calling something that is actually policy a 'guide' just to get out of doing an EIA then they are failing in their duties under the Public Sector Equality Duty.

LonginesPrime

What I don't understand is why every other line says 'the guidance in this area is not new' instead of actually doing any analysis- it seems to be suggesting that it's a foregone conclusion that everything's fine on the basis the equality act exists and the reviewer is confident that staff will follow guidance to make sure everyone is happy.

When they say 'the guidance is not new', they seem to be referring to the previous guidance from 2009. This was published before the Equality Act came into force in 2010. I don't know if there was a requirement to complete Equality Impact Assessments before this date, but if there was and nothing in that part of the policy had changed, the findings of the original EIA could simply have been copied over to the new one. If there was no EIA for the original guidance, the work should have been carried out for the new guidance, even though the guidance itself was not new.

I just can't get over the fact that the issue of the protected characteristic of sex isn't a consideration in the provision of single sex accommodation being open to anyone who wants to be in there.

I asked specifically in my FOI request for "All documents showing how the potential conflict between the protected characteristics of sex and gender reassignment was assessed."

They sent nothing except this single document, so I assume they did not consider this potential conflict at all.

At best I hope some one has been putting together the document and cutting and pasting phrases from another document, or using a different document as a template and overwriting it. They have not finished and you have been sent a work in progress. That's me clutching at straws.