Court dismisses appeal in trans healthcare case

In a judgment handed down today, the Court of Appeal agreed with the decision of the lower court, which found that the duty for 92% of patients referred to certain specialist healthcare services to receive first appointments within 18 weeks was only a “target duty”.

We started work on this case back in October 2021 as we were deeply concerned over the life-altering – and sometimes life-threatening – waits trans people were facing for specialist NHS healthcare. 

Data from 2022 showed that of the 26,234 adults waiting for a first appointment for trans healthcare services, 90% had been waiting over 18 weeks, and young people were being seen for the first time after an average of three years. 

Waiting times have continued to get longer and longer, and this situation predated the pandemic by a long margin. 

Our work on this case has been motivated by a desire to see all individuals getting the healthcare they need, whatever their gender. 

We challenged these waiting times in Court in November last year, arguing – alongside five co-claimants including Gendered Intelligence  – that the NHS is acting unlawfully by failing to meet its 92% duty.

While we acted on behalf of trans individuals in this case, it had the potential to help patients across the board to access healthcare. Across all services it commissions, the NHS is failing to meet its 92% duty, with only 60.8% of patients receiving appointments within 18 weeks as of August 2022. 

In January this year, we received news that our case had been rejected by the judge – but we were granted permission to appeal some parts of that decision. 

At the Court of Appeal in July, Tom de la Mare KC highlighted what we think is the legally binding nature of the legislation which sets out the 92% duty, and asked the Court to make a declaration that NHS England has been acting unlawfully.  

The Court of Appeal has today also found that the “target” duty only applies to consultant-led services and has dismissed the appeal.  

Bekah Sparrow, Legal Officer at Good Law Project, said:

“Today’s outcome is not what we hoped for, and we are incredibly disappointed to see NHS patients let down once again.

“Good Law Project wants to see a world in which everyone, regardless of their gender identity, is able to access the healthcare they need within reasonable timeframes. We continue to stand alongside the transgender community, and all NHS patients, as we work towards a fairer world.”

We remain proud of our record in supporting the trans community. Since Good Law Project started using the law to defend the rights of trans people in the UK, we have won two important cases: the Bell v Tavistock appeal and AB v Tavistock and Portman NHS Foundation Trust.

We are incredibly grateful to the thousands of you who chipped in to support this important case, showing how many of us agree that everyone should be able to access the healthcare they need.