If the Police are investigating an allegation that a patient on a Ward has raped someone (rape rather than Sexual Assault by Penetration) then they should ask whether any patients are in possession of a penis. The NHS does not need to disclose anything about the patient's sex in order to answer that question.
In Scotland, the Sexual Offences legislation has been amended so that a "penis" may belong to either a male or a female, so it would be even more pertinent to avoid asking about "sex" and ask instead about organ needed, in law, to commit rape:
Sexual Offences (Scotland) Act 2009
Part 1
Rape etc.
Rape
(4) In this Act—
- “penis” includes a surgically constructed penis if it forms part of A, having been created in the course of surgical treatment, and
- “vagina” includes—
(a) the vulva, and
(b) a surgically constructed vagina (together with any surgically constructed vulva), if it forms part of B, having been created in the course of such treatment.
https://www.legislation.gov.uk/asp/2009/9/part/1
However, there are whole list of exceptions in Section 22 of the GRA 2004 wrt the prohibition on disclosing whether someone has applied for a GRC, which is the only thing that those lying NHS staff might have been misguidedly relying on when they told the police that there were no male patients on the ward:
Gender Recognition Act 2004
22 Prohibition on disclosure of information
(4) But it is not an offence under this section to disclose protected information relating to a person if—
(a) the information does not enable that person to be identified,
(b) that person has agreed to the disclosure of the information,
(c) the information is protected information by virtue of subsection (2)(b) and the person by whom the disclosure is made does not know or believe that a full gender recognition certificate has been issued,
(d) the disclosure is in accordance with an order of a court or tribunal,
(e) the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal,
(f) the disclosure is for the purpose of preventing or investigating crime,
(g) the disclosure is made to the Registrar General for England and Wales, the Registrar General for Scotland or the Registrar General for Northern Ireland,
(h) the disclosure is made for the purposes of the social security system or a pension scheme,
(i) the disclosure is in accordance with provision made by an order under subsection (5), or
(j) the disclosure is in accordance with any provision of, or made by virtue of, an enactment other than this section.
https://www.legislation.gov.uk/ukpga/2004/7/section/22
Given the notoriety of that case and the awful consequences for the woman, whose rape was eventually confirmed as it had been captured on CCTV, this would have been a very helpful example to include in the Code of Practice to provide "clarity".
I would bet my bottom dollar that it is not in there.
Which definitely has me "frothing" at this cloth-eared quote from "a source close to the minister" in the Telegraph article:
"A source close to the minister said: “Bridget believes firmly in the importance of protecting single sex spaces for women, but this can be done in a way that ensures dignity for trans people too: it is not an either-or.
“Bridget has ignored the frothing on both sides of the culture war and encouraged EHRC to focus on what matters: the dignity of everyone in our country. She will take no lectures on the rights of women just as she will never punch down on any minority.”
If that truly reflects her attitude then I hope and expect that her arrogance will see her unseated at the next election.