Guidance for NHS completely misrepresents the law. Again.

[BinturongsSmellOfPopcorn]

It's the NHS Confederation, this time - playing fast and loose with the Equality Act: https://twitter.com/legalfeminist/status/1666199916153036816?

WTF am I reading?!
Thank you for posting this but wow.. hard to believe any credible org would draft, let alone sign off and publish, policies that are this horrible, sexist, and contemptuous of female patients.

Trans-identifying HCPs who are not capable of putting patient privacy and dignity above their own wish for validation are in the wrong job.

Service users should be entitled to care from well HCPs, they should not have to deal with gaslighting and stress on top of being ill by dealing with unwell HCPs inducing further illness in service users due to fabrications.

Yes, what are they on about, threatening to bring legal action against patients for breaching their non-existent duties to NHS staff under the Equality Act? That makes zero sense.

I recently had a rather long arduous appointment with gynaecology which involved a good 40mins+ of being rummaged to find my (rather uncooperative 😳) cervix. With an ever increasing pile of rejected speculums (speculi?)

Two doctors and three nurses were involved.

It was a bit embarrassing and uncomfortable but as we were all female we were able to have a bit of humour about the ridiculousness of the female body from the perspective that we all had one and likely had all been/or could go through unedifying medical examinations. They were able to put me at as much ease as possible given the circumstances.

A male in lipstick would have changed the dynamic considerably and detrimentally. No matter if his inner soul was pink. Not because of trans status, but because sex matters and a woman is not a man in a wig/wearing lipstick/with implants/without a penis.

That’s bizarre in its reversal of rights throughout. While I accept staff should have rights (within reason, I think they should have some rights not to treat patients who are abusing them, or present a risk, for example) the patient’s rights to refuse treatment (with the exception of treatment for certain mental health conditions) is paramount. They can be as bigoted as they like, but their consent is still required. Otherwise it’s assault.

The hospital can refuse treatment, obviously, but the patient does not have to accept treatment from anyone. The idea that the choice to proceed or continue primarily lies with the person carrying out the treatment is back to front, yet it pervades many of the statements highlighted in that thread.

I was in hospital recently. One of the wards I was on temporarily had a member of staff who looked like Eddie Izzard in 'girl nurse' mode. If he had offered me a cup of tea, I would've smiled and said thank you. If he had wanted to change my catheter, I would have politely refused. Then what? Would I have been discharged? Sued? Blacklisted from my GP? It's concerning.

They seem to have forgotten what healthcare is for. It's about professionals providing necessary care for people who are injured, unwell, in pain, scared, worried. They are all vulnerable in some way. It's not about those vulnerable people providing validation for people with a chosen gender identity and being denied treatment if they fail to comply.

This is the document. Patients requesting same-sex staff is covered on p60-61.

https://www.nhsconfed.org/system/files/2023-06/Leading-for-all-supporting-trans-non-binary-healthcare-staff_2023.pdf

97 pages of how to prioritise their 'feels' over other people's dignity, safety and choices.

How on one hand was I offered a chaperone at my smear test despite the nurse being a woman. Yet simultaneously in hospital a patient would be forced to accept intimate care from a male against their wishes.

No male Dr with pure motives would ever put themselves in a position like this.

I hope they get judicially reviewed on this because it’s specifically targeting women’s consent and smashing it up

Thank you so much for sharing this

97 pages!! All about not hurting the feelings of trans people? No wonder the NHS is haemorrhaging money. How much did that lot cost? And it's not even legally accurate.

Read this yesterday and am furious.

Honestly if I allowed what I thought was a female HCP to do an intimate exam and it later turned out they were male I would press charges for sexual assault.

There is currently a court case where a teenage girl "pretended" to be a boy and engaged in penetration of a "non lesbian" girl and that girl is now facing sexual assault charges as its deemed the victim did not give consent.

I'm struggling to see the difference.

Thanks for posting the original doc OldCrone.

They've completely misrepresented the Forstater case on p65 too, in the tiny section on gender critical beliefs.

They say:
As the ruling states, ‘those with gender critical beliefs (cannot) misgender trans persons with impunity’; where a member of staff ‘engages in conduct related to a relevant protected characteristic which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment’ this would be considered harassment under the Equality Act 2010

Whereas the judgment in Forstater sets down no such definitive ruling (as the court wasn't required to decide these points) and merely states that the judgment doesn't mean that people can misgender people as it wasn't addressing this specific issue:
This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment under the EqA. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given case.

It's laughable (and scary) that the NHS doc actually quotes the judgment but inserts the crucial additional word "cannot" where it actually said "can" because it was clarifying what the judgment didn't cover.

People reading this doc will obviously think the author has quoted the Forstater judgment accurately when in reality it has taken that wording completely out of context and twisted it to say the opposite of what it was saying (in that the judgment was specifically saying that it wasn't ruling on misgendering generally and that obviously individual instances would be considered on the facts of those cases).

Perhaps the most concerning part is that for any NHS managers referring to this guidance, the way it misquotes Forstater makes it sound like an employment tribunal has sanctioned disciplinary action for all instances of misgendering by GC employees. A nursing manager or similar is unlikely to go back to the underlying sources if faced with this issue on the front line and may well rely on this incorrect legal advice to determine how to deal with an employee misgendering incident. In an ideal world, the employee would receive adequate legal advice on what the position in Forstater actually does and doesn't say, but if the unions and legal advisors are also referring to this NHS doc for guidance on dealing with GC employees, then someone could be wrongly dismissed and not bother to appeal if they believe (and everyone is telling them) that this NHS guidance is accurate in its interpretation of Forstater.

can always contact 'sex matters' they want to know about this sort of thing

The LGBT Foundation which has come up with this disgraceful document administers the NHS rainbow badge project. Trusts hoping for Rainbow Badge accreditation must implement many of these policies.

There are a lot of FOIs to NHS England (which listed all the trusts involved so far) and various trusts. Some have supplied policies. This one supplied the Induction Document which details measures trusts must take.

www.whatdotheyknow.com/request/870748/response/2080857/attach/html/5/Induction%20pack.docx.html

I am very vocal about this issue both at work (nhs) and on Twitter.

I have a thread about annex b

I have postcards to send to nhs email about this.
All you need to do is dm me your opinion (had to fit on a postcard) and I send it to nhs England for you.

7000 have already been sent to nhs England
I spent yesterday in my home town handing out postcards and chatting to women.

We need more voices
This is anonymous
This is the beginning of the fall of the nhs.

I can't see any difference. If it is a crime to claim to fail to disclose your sex in the context of a sexual relationship, then it must also be a crime to fail to disclose your sex when carrying out an intimate procedure as a health professional when the patient has requested care from someone of the same sex.

From the document (p60):
For employment purposes, guidance from the British Medical Association supports the view that a trans person’s assigned sex at birth is irrelevant to their
working life. For this reason, they conclude that a patient has no right to be told a healthcare worker’s assigned sex at birth.

This is the BMA guidance:
https://www.bma.org.uk/advice-and-support/equality-and-diversity-guidance/discrimination-guidance/managing-discrimination-from-patients-and-their-guardians-and-relatives/exceptions

The BMA guidance says:
A patient does not have a right to know if a healthcare worker has a gender different to the sex they were assigned at birth. In some instances, a healthcare professional may not physically present in a way that could be assumed to be any gender.

So they seem to be saying that if a woman requests a woman to carry out an intimate procedure, they have no right to know whether that woman is a real, female woman or a male 'woman'.

As outlined above, in some instances, for the psychological safety of a patient, there may be occasions where accommodations can be made about the presenting gender of a professional who treats a patient – this would be on a case-by-case basis. For example, if a patient had been the victim of sexual abuse by a person of a particular gender, they may ask for a professional to examine them who physically presents in a different gender.

It's disturbing that they think that a woman who has been sexually assaulted by a man would feel more comfortable being treated by a man in a dress than any other man.

I can't see any difference. If it is a crime to claim to fail to disclose your sex in the context of a sexual relationship, then it must also be a crime to fail to disclose your sex when carrying out an intimate procedure as a health professional when the patient has requested care from someone of the same sex

Wasn't it an aim of one lgbt organisation to attempt to remove the sex by deception clause?

What really worries me about this is that it doesn't take patient consent into account at all. Patients should be entitled to not consent to treatment with anyvprofessional and ask for someone else without being penalised for it. If someone makes you uncomfortable for whatever reason then you should be able to say no to them providing personal care without the threat of being discharged and accused of discrimination.
I've only once had to ask for a different HCP as a patient. It was because of comments they had made previously that sent my mental health into a downward spiral. If they had been trans then who is to say I wasn't making that request based on their gender identity and discharge me without care. Or coerce me to consent to treatment which isn't consent at all.

What really worries me about this is that it doesn't take patient consent into account at all.

Patient consent seems to be irrelevant if a trans identified staff member is involved. It's all about the rights of the trans identified staff member, their choices and how they shouldn't be forced into doing things that make them uncomfortable.

P60 again (my bold):

If a trans woman or trans man is assigned to provide care, they should be
made aware of the patient’s request, and given the choice of whether they feel comfortable treating or caring for the patient.

A non-binary person would not be prevented from administering care in this circumstance; however, the comfort of the staff member should be prioritised.
If they feel safe fulfilling care and presenting in a particular gender towards said patient, this is acceptable, however they should not be forced to deliver care if this would cause undue distress or invalidate their lived experience of gender.

No mention of the patient and whether they are comfortable or caused undue distress.

This is all it has to say about the patient:

The patient has no right to be told that the person treating them is trans or non-binary.

Lots of rights for the staff not to have their feelings hurt or their 'gender' invalidated, but the patient doesn't have the right to refuse care from someone who makes them feel uncomfortable or unsafe.

The BMA guidance says:
A patient does not have a right to know if a healthcare worker has a gender different to the sex they were assigned at birth. In some instances, a healthcare professional may not physically present in a way that could be assumed to be any gender.

That seems a lot more ambiguous than the way they have interpreted it.

It could mean that patients don't need to know anything about the Health Care Worker's gender identity (or religion, football team, hogwarts house, enneagram, Myers Brigg classification, horoscope, or favourite flavour of ice-cream) but that possibly the physical reality of their sex still matters for the purposes of intimate care.

Unfortunately it isn't clear which interpretation is correct.

There isn't one as far as I'm concerned

LonginesPrime · Today 08:12

It's laughable (and scary) that the NHS doc actually quotes the judgment but inserts the crucial additional word "cannot" where it actually said "can" because it was clarifying what the judgment didn't cover.

Does anyone know if it's actually legal for them to produce a guidance document like this, with a deliberate mis-quote of a legal judgement, to pretend that it said something different? It must surely be a disciplinary matter, at the very least.