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Case update 02 December 2022

High Court hears ‘extreme’ waiting times for trans healthcare are unlawful

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We’ve been at the High Court this week bringing our legal challenge against NHS England over long-standing, lengthy and unlawful delays to meeting the trans community’s healthcare needs.

On 29 and 30 November, the court heard our claim – brought alongside five co-claimants: adult claimants Eva and Alex, two child claimants, and trans-led grassroots charity Gendered Intelligence – that these waiting times, and other failures in trans healthcare services, are discriminatory and unlawful.

David Lock KC, speaking on behalf of the six claimants, outlined the ‘extreme’ waiting times faced by trans people when accessing specialist healthcare – as much as four years for young people and five for adults.

He set out that, while the NHS has taken some steps to remedy this situation, these waiting times have continued to get longer and longer, and this situation predates the pandemic by a long margin. 

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He argued that the NHS has been acting unlawfully, given that it is required to see 92% of those referred within 18 weeks – a requirement which, he explained, is a hard-edged legal obligation, not a discretionary target duty. As of August 2022, he said, there are 26,234 adults waiting for a first appointment, 90% of whom have been waiting more than 18 weeks. 

He then turned to highlight the discrimination faced by the four individual claimants in this case given the significantly longer waiting times faced by trans patients for specialist healthcare compared to other patients. 

Finally, he argued that NHS England is in breach of its public sector equality duty, as it hasn’t sufficiently considered the impact that decisions it has made regarding the provision of specialist healthcare has on trans patients. 

In a witness statement presented to the court, Eva highlighted how she felt ‘ignored’ by the NHS during her five-year wait for treatment, stating: “Nobody should have to go through this painful indefinite limbo, just to be able to carry on with their life.” Meanwhile, Alex said the lengthy waiting times had caused him ‘extreme distress’ and made him feel ‘helpless’.

Following David Lock KC’s submissions, Eleanor Grey KC – on behalf of NHS England – argued that the NHS is not in breach of its duties as the 92% obligation is a ‘target’ duty to ‘make arrangements to ensure’ patients access care, and that they are making efforts to achieve these targets. 

Despite this, she acknowledged the 92% duty was being breached, saying that this predated – but has been worsened by – the pandemic. She argued that a declaration of unlawfulness should not be made. 

We and our co-claimants are asking the court for a declaration that NHS England has been acting unlawfully in relation to its provision of healthcare to trans children and adults. While we recognise the strain NHS England is under, it must fulfil its legal duty to provide timely treatment.

We expect a judgment within a few weeks or months. 

You can read the claimants’ skeleton argument here and the defendant’s skeleton argument here. You can also read witness evidence on the claimants’ side from Gendered Intelligence, Eva Echo, Alex Harvey and Jo Maugham and on the defendant’s side from Jeremy Glyde (here and here) and Andrew Jackson.

You can also read the expert witness statement from academic specialist Dr Michael Toze, which provides important background to the case.

If you are in a position to support the fight for trans healthcare rights, you can donate here. We are grateful for your support.