Just reading up on general advice on consent by GMC and government. You can refuse consent for any reason or no reason. It may be a reason that the practitioner thinks is irrational. Your consent is not valid if you feel pressured or under duress of any kind.
Consent sort in advance should be reaffirmed at the time of examination. If you have specific concerns these should be respected and discussed with you in partnership and not simply dismissed.
Your medical history, views and experiences are relevant and should be taken into account. They should be respected even if a HCP disagrees with them.
Trust between a patient and a HCP is paramount. If you do not feel your feelings are respected this is a breech of the patient / carer relationship.
To my mind the GCM and government advice effectively gives you the right to refuse to give consent to be treated by a transwoman, if you are uncomfortable with it. This can be deemed irrational and wrong by the transwoman. Thats just tough. Your political views and beliefs should always be respected even if a HCP totally disagrees with them.
If you feel pressured to have treatment from someone who is trans then that consent is not valid. They can not use the transphobic card to guilt you into treatment.
If its on your records that you have some sort of sexual violence or history of trauma against you, then this is appropriate and should be taken into consideration. Thus if you request a female practitioner sending along a transwoman without this being properly discussed and your explicit consent given without duress or pressure is appropriate otherwise they are not respecting your individual care needs and could potentially cause you distress / mental harm.
This all also protects the clinician and their working relationship with patients. So good practice here is in the interests of trans HCPs rather than discriminating against them.
The law is generally about reasonableness as a rule. Is it reasonable for a woman who has been sexually assaulted by a man to have a fear of men? Or indeed people who they regard 'irrationally' as men? Difficult to argue 'no' imho.
If this creates a situation where its a choice being forced to consent to treatment by a transwomen or have no treatment at all then this creates a problem for the NHS, if this situation would effectively do you harm or could do you harm in anyway.
Its different to see how they could enforce a law on 'transphobia' in these circumstances. You have rights as a patient which are in direct conflict with the principles of doing no harm to a patient. A HCP effectively seeking to impose this on a patient where it would do harm technically should not be deemed fit to practice.
The need to be sensitive to this conflict of interest should therefore be one that the NHS seeks to resolve with all staff, stating that yes, it is relevant because yes, it could harm a patient even if they regard them as bigotted or irrational. The NHS withholding treatment on the basis of patients being deemed as bigots in these circumstances is rather more difficult than telling a racist patient there is no white doctor for this reason. There is a cause to the irrationality that is reasonable to understand.
Where there are loops which might be problematic is if someone decides you have to 'have proof of assault / rape'. Or to put it another way, effectively the development of a rape clause for accessing health care from a woman only. I fail to see how you could easily marry such a clause up with the 'progressive' angle of being supportive of trans rights.
The other way around it is if suddenly the rules were changed on capacity to consent and an 'irrational fear of transwomen' was deemed to be a sign that you were incapable of capacity. Again, for the same reason I don't think that viable even with the craziness.
My point is, that if a case came up, and it got to the courts, I think there would be a strong case in law to rule in favour of women, even if the law were changed.
But thats the problem. You'd need a case to knock cases like this on the head and the NHS and medical bodies be forced to develop a clear and consistent policy that should be adhered to with regard to sex or former sex of staff.
The issue is the gap that has now formed and the lack of guidance to cover this conflict of interest. Its about women no longer fully being confident in their rights and fully aware.of what constitutes consent and when it is invalid in a medical situation.
The blurring of the principles and practice of consent is extremely troubling. The NHS and government, should really have a duty of care and the presence of this gap which is now forming is a failure of that duty of care.
Its a legal minefield ready to blow up in a lot of faces, because people failed to head the warning signs saying 'minefield dead ahead'.
In this case the Trust have immediately apologised. Does this mean they are developing a policy? Or does it mean they are avoiding making a formal policy and indeed a court case that would force a formal policy.
The irony is, that a debate would resolve this. People saying they don't want a debate, don't want this looking at properly for all concerned. That to me, rings alarm bells and makes me think a big gamble is being made on the back of the knowledge and experience that women don't complain.