NHS health boards issue update on single-sex spaces following Supreme Court ruling

Judges unanimously ruled a woman is defined by biological sex under equality laws

NHS bosses in Scotland are awaiting new national guidance on single-sex spaces following a landmark ruling by the Supreme Court.

It comes after judges unanimously ruled on Wednesday that a woman is defined by biological sex under equality laws.

READ MORE: Why UK Supreme Court's gender ruling is a welcome injection of common sense

The judgment is expected to have significant implications across Scotland, England and Wales, including in the health service, where previous guidance has allowed trans women to use female-only spaces such as changing facilities.

The Supreme Court ruling is expected to have wide-ranging implications | PA

A transgender doctor’s use of a female changing room is at the centre of an ongoing employment tribunal involving NHS Fife, which has said it will “take time to carefully consider” the court ruling.

Scotland’s second biggest health board, NHS Lothian, said: “We anticipate updated guidance from the Equalities and Human Rights Commission (EHRC) and Scottish Government.”

The health board said it did not have “a specific policy regarding single-sex spaces”, but instead adopts “a person-centred approach, on a case-by-case basis”.

However, its existing guidance says: "If there are single or separate sex toilet or changing facilities for women and men, NHS Lothian staff should treat trans and non-binary people according to their gender identity. If we refuse to allow a trans person to use the toilet or changing facilities that they feel comfortable using, this could be unlawful discrimination on grounds of gender reassignment.

“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.”

Meanwhile, NHS Ayrshire and Arran told The Scotsman it would follow “any new national guidance and aim to ensure everyone is protected from discrimination”.

It added: “We will consider the recent Supreme Court decision and review any relevant updates to NHS Scotland workforce policies and guides as appropriate.”

The health board was previously criticised for adopting guidance that suggested patients who raised concerns about trans women being placed on female-only hospital wards were comparable to racists.

NHS Forth Valley said it did not have specific guidance on facilities for men and women and would continue “to take a person-centred approach on a case-by-case basis”, adding: “We will also follow any new or updated national guidance.”

NHS Tayside said its policy, which dates to 2022, was already being reviewed prior to the Supreme Court ruling.

It currently says: “Trans people who have proposed, commenced or completed reassignment of gender should be accommodated according to their presentation (the way they dress, the name and pronouns that they currently use). This may not be the same as their physical/biological sex appearance; it is not dependent on them having a legal name change or gender recognition certificate.”

Scotland’s nine other health boards did not respond.

EHRC chairwoman Baroness Kishwer Falkner said single-sex services such as changing rooms “must be based on biological sex”.

She told BBC Radio 4’s Today programme: “If a male person is allowed to use a women-only service or facility, it isn’t any longer single-sex, then it becomes a mixed-sex space.

“But I have to say, there’s no law that forces organisations, service providers, to provide a single-sex space, and there is no law against them providing a third space, an additional space, such as unisex toilets for example, or changing rooms.”

She said the NHS would be pursued if it did not follow new guidance on single-sex spaces.