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Case update 24 March 2023
NHS England must ensure rights of young trans people are protected
Good Law Project has written to NHS England asking for an update on the new specialist service for trans young people and children in England, including assurances that protections outlined in the Equality Act are properly implemented.
In November last year, we went to the High Court to challenge NHS England over the extreme waiting times faced by trans people trying to access specialised healthcare. In January, we received news that our challenge had been rejected by the Judge – but we were also granted permission to appeal, and are now fundraising so we can continue the fight.
While the judgment was disappointing, the Judge did reject NHS England’s argument that young people seeking gender reassignment are not protected under the Equality Act 2010.
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The NHS had excluded trans young people and children from its definition of “gender reassignment” – a protected characteristic under the Equality Act. However, the Judge confirmed that there is no reason why a trans child or young person could not meet the definition.
This was an important legal conclusion – which has wider implications for young people in the trans community.
We have now written to NHS England to ask for assurances that the Judge’s correct definition of “gender reassignment” will be applied when it develops its policy and delivers these services going forward.
The current specialist service for trans children and young people in England is set to be closed and replaced in 2023/24, with an interim service scheduled for Spring 2023.
A consultation on the interim service specification (ISS) closed in December, prior to the judgment. And the accompanying Equality and Health Inequalities Impact Assessment (EHIA) was based on the NHS’s flawed understanding of the protected characteristic of gender reassignment.
NHS England is bound by the public sector equality duty (PSED), which requires public authorities to have due regard, in the exercise of their functions, to the needs of those with protected characteristics.
The PSED applies to both individual cases and the formulation of policy. Yet there is no analysis in the EHIA on the impact of the interim service on children and young people who have been excluded from the protected characteristic of gender reassignment.
This suggests the needs of these children and young people have not been adequately considered in the development of the ISS.
We have therefore asked NHS England to confirm it accepts the Judge’s conclusions and it will apply this when finalising the ISS. Our letter also asks for an explanation of how the NHS proposes to meet its legal obligations given the closure of existing services and the concerns raised by Gender Identity Development Service (GIDS) staff in an open letter last month.
Other sources at GIDS say the first phase of the interim service may not be ready until well after the planned Spring 2023 launch date.
If you are in a position to donate to support our work in this area, any amount big or small would be greatly appreciated. You can find more information on how to donate to our trans healthcare appeal here.