NHS Policy Audit - working party

[KnottyAuty]

Following on from Thread #23 of the Peggie v NHS Employment Tribunal. Anyone who wants to help with survey/audit of paperwork against the Equality Act protected characteristics please join here 😊

I've submitted Ayrshire & Arran, which took me 3 - 4 hours spread round other activities:

No changing room policy.
DEI policy 'Human Rights' created 2016, revised once 2018 (3 yearly specified). The EA2010 nine PC's presented twice as a simple list each similiar to each other and to the one in the act.
EQIA's post 2020 listed on one page, with an email address to apply for earlier EQia's (its the DEI officer).

An indicative snippet from a completed EQia 2022 'Workforce plan'
"2.3. Gender Reassignment X {'neutral'} Someone transitioning has no impact on the workforce plan. NHS Ayrshire & Arran are supportive of individuals who transition and have wider guidance and support in place for this. "

There are various documents on their EQia page I going to examine, but submission was on the late side.

(Now to catch up on the thread).

I did a quick Google search of my local hospital trust policy- I’m in England. Policies both for staff and patients could have been written by Stonewall. Right down to advice to attempt re education and if not move patients who are unhappy with a mixed sex ward because bigotry. FML.

Edited to add policy produced around 2019-2021, due for review in 2026.

This from the Telegraph is interesting - sign that the SG’s confidence might be showing signs of slight crumbliness?!
https://archive.is/gmuJ4

Fingers and everything else crossed that it is. To be honest, I don’t think the conversation could even have happened as recently as a year ago, so things are definitely shifting.

@KnottyAuty, what needs to happen next with all our research? Do you need help to get it to the people who will get it in the public eye?

Question to all the researchers:

If you managed to find a policy, or a guidance, or a part thereof, that mentioned toilets and changing rooms, did it have the phrase “on a case by case basis?”

And has anyone checked the relevant part of the EHRC recommendations? Which everyone seems to say they’ve based their policies on? Because I feel like I remember someone saying “case by case” is not in there.

I wonder if “case by case” - and in particular the instruction to interpret that in terms of case=individual trans person rather than case=specific bathroom/CR - is some Stonelaw creeping in. (Well, stomping in, in size 13 high heels…). It would be interesting to try to pin the source of that down.

No mention of case by case in Forth Valley's policy. This applies from the point where the individual transitions socially.

"NHS Forth Valley supports transgender people’s right to use the facilities that they feel are the most appropriate to their gender. This includes the right of non-binary people to use the facilities that they feel are most appropriate to them, i.e. male, female or accessible facilities."

Policies are usually made for facilities ("this facilty is women only because reasons, & yes, doubting Thomas's, we mean women, any male caught in breach will automatically be on a disciplinary....".).
Unfortuantely I cant remember where either, but various legal eagles have commented.

Highland's Supporting Transgender and Non Binary staff in the Workplace Guidelines state:

"Sometimes patients may legitimately request for a particular gender of healthcare worker to ensure psychological safety, such as for intimate examinations after sexual abuse. To avoid discrimination against employees, requests should be handled sensitively on a case-by-case basis. British Medical Association (BMA) have produced helpful guidance on managing discrimination from patients: Introduction (bma.org.uk) and Exceptions (bma.org.uk)"

Lothian's Supporting trans staff and gender inclusive workplaces guidance states:

"There are limited circumstances when NHS Lothian may be allowed to provide a different service or exclude a trans person from a single or separate sex toilet or changing facility. These circumstances are set out in law in one of the exceptions in the Equality Act 2010. If a manager thinks the exception may apply, they must be guided by the basic presumption that discrimination is unlawful unless the rules for the exception have been met. There must be a very good, evidence-based reason for excluding a trans person, and in each situation, the reason must not be based on prejudice, and all possible less discriminatory steps must have been considered. These kinds of decisions must be made on a case-by-case basis and line managers must balance the needs of the trans person to use this facility, against the needs of other members of staff and whether they will experience any disadvantage if the trans person is allowed to use the facilities. To do this will often require careful and sensitive discussions with all the staff affected (maintaining confidentiality for the trans person). Care should be taken in each case to avoid a decision based on ignorance or prejudice."

Many thanks for that! Interesting to see the BMA reference. Will go and look at that…

The Lothian one I knew about, and the “case by case” there seems very much to suggest (wrongly, I believe) that case=individual person. That’s what set me off down this particular rabbit hole.

I should have added this.

"Should there be any objections to this; the objections will be dealt with by a manager in a sensitive and understanding way while not denying the transgender person access to facilities appropriate to their lived gender. It is not good practice to allocate specific facilities for the individual who is transitioning."

Really?!? Oh that’s pretty egregious, isn’t it? On so many levels.

Agreed @TwoLoonsAndASprout TBH the whole policy reads like it was written by stonewall and ditto the accompanying EqIA. I would be relieved I don't live in that area but my local trust in the midlands is just as bad😧

Case by case means as a general concept so toilet facilities may be a different case to changing rooms as an example. However, Stonewall has told people that it refers to an individual so if an individual trans person wants to access spaces their case should be decided upon. Which isn't the law, but it makes it harder to hold the line of single sex spaces

@TwoLoonsAndASprout The BMA Guidance is even more eye-watering, essentially dismissing sex as being irrelevant:

"Whether or not a patient can request the healthcare worker to be born in a specific sex is not covered by the guidance, although it is likely to be a very small number of incidents where this issue may occur.
When a person has affirmed their gender to be different than the sex they were assigned at birth, they are protected from discrimination. The sex they were assigned at birth becomes irrelevant to their current working and day-to-day lives. 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.
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."

Introduction (full guidance can be downloaded from here)
Exceptions

The thing I don’t understand is how anyone with two brain cells to rub together could possibly have looked at the Stonewall instruction (case=person not case=concept) and not seen that it actually cannot be done. If the first “case” you come across is trans identifying man A, and you decide that, in this particular case, you should let him in the women’s CR, then you cannot, in all fairness, not do the same for cases B through whatever (or at least not without risking your job when they complain, which is probably the point). So you have effectively made a case=concept decision anyway, but without having to come out and admit that you are making it, with all the attendant paperwork and pushback.

Are people really such idiots? Are they such sheep? I don’t know why I’m asking this, we wouldn’t be here if they weren’t…

Jesus, Mary and a whole flipping stable full of donkeys. That is ABHORRENT.

Is that the same BMA that was advising Dr U?

@umbel

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

Just spotted this. The presenting gender?!

Yep! Not allowed to ask for a woman to perform your intimate exam, but you can ask for someone in a frock, with long hair and make-up, as long as you have a legit reason for asking. Wild!

Ah but no because according to Nic and Humza, if you think they’re “at it” or “rapistgender” you can wave the magic wand to stop them.

Interesting about the BMA. They seem to contradict the existing law on this.

"Same-sex care is recognised through accompanying CQC statutory guidance to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The guidance sets out how providers should act when providing intimate or personal care, and make every reasonable effort to make sure that they respect people’s preferences about who delivers their care and treatment, such as requesting staff of a specific sex."

The NHS constitution is also being updated to strengthen this giving patients a right to request same sex intimate care and making it clear that sex means biological sex.

https://www.gov.uk/government/consultations/nhs-constitution-10-year-review/nhs-constitution-10-year-review

@FarriersGirl:

Interesting about the BMA. They seem to contradict the existing law on this.

I mean, they can join the queue, I guess. So does every other badger, it seems. It makes the (possible) advice they gave Dr U make more sense though, if they are utterly captured.

Care should be taken in each case to avoid a decision based on ignorance or prejudice.

It seems that they mean
"Care should be taken in each case to avoid a decision based on information."

I have been looking to see if NHS Scotland has something similar the NHS constitution above. They have a patient charter but it is rather less specific
about patients rights just mentions dignity and respect a lot. The NHS constitution for England is presumably sitting in Wes Streeting's pending tray.

https://www.gov.scot/publications/charter-patient-rights-responsibilities-revised-june-2022/pages/2/

Ooh thanks for the idea - yes here it is

https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2022/10/charter-patient-rights-responsibilities-revised-june-2022/documents/charter-patient-rights-responsibilities-revised-june-2022/charter-patient-rights-responsibilities-revised-june-2022/govscot%3Adocument/charter-patient-rights-responsibilities-revised-june-2022.pdf

It refers to a right to single sex spaces - genius!