Watchdog will 'pursue' NHS if single-sex space policy doesn't change after Supreme Court gender ruling

The head of the UK’s equalities watchdog has said her body will pursue the NHS if it does not change its existing guidance on the treatment of trans women patients.

Baroness Kishwer Falkner, chairwoman of the Equality and Human Rights Commission (EHRC), stressed the NHS would “have to change” its guidance.

A ward at a NHS-run hospital | PA

In a long-awaited judgment delivered on Wednesday, the Supreme Court confirmed the terms woman and sex in the 2010 Equality Act “refer to a biological woman and biological sex”.

READ MORE: Supreme Court UK LIVE: Judges rule that 'sex' refers to biological sex in For Women Scotland gender case

This means transgender women with a gender recognition certificate (GRC) can be excluded from single-sex spaces if “proportionate”.

The existing NHS guidelines say trans people should be accommodated in single-sex accommodation according to their gender identity, rather than their assigned sex at birth.

The Scotsman’s daily newsletter brings the best stories straight to you - subscribe now

But Baroness Falkner told BBC Radio 4’s Today programme on Thursday morning: “They [the NHS] have to change it. They now have clarity.

“There is no confusion as of yesterday, at 10.30 in the morning, and they can start to implement the new legal reasoning and produce their exceptions forthwith, but they have to change it. We will be having conversations with them to update that guidance.”

READ MORE: UK Supreme Court ruling on definition of woman branded 'abject humiliation for the SNP'

Asked if the EHRC would pursue the case if the NHS doesn’t make a change, she replied: “Yes, we will.”

Officials south of the Border has said they were already updating the guidance, but the judgment would be considered as they move forward.

UK care minister Karin Smyth told BBC Breakfast the “NHS will obviously be complying” along with “every other public body”.

She said she hoped the ruling would draw a line under arguments over gender recognition, but accepted more “homework” needed to be done on what it will mean in practice.

The Supreme Court decision was hailed as a victory by women’s rights campaigners, but LGBT charity Stonewall described the judgment as “incredibly worrying for the trans community”.

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

Baroness Falkner said while the ruling was a “victory for common sense”, this was only the case “if you recognise that trans people exist”.

She said: “They have rights, and their rights must be respected – then it becomes a victory for common sense.” The EHRC head added: “It’s not a victory for an increase in unpleasant actions against trans people. We will not tolerate that.”

Baroness Falkner said trans women could not use single-sex female toilets, changing rooms or compete in women’s sports, in light of the Supreme Court ruling.

Transgender rights counter protestors disrupt a demonstration by Let Women Speak earlier this month in Edinburgh. Picture: Jeff J Mitchell/Getty Images | Getty Images

She described Wednesday’s ruling as “enormously consequential”, saying organisations should be “taking care” to look at the “very readable judgment” to “understand that it does bring clarity, helps them decide what they should do”.

Asked if it was now simple that trans women cannot take part in women’s sport, she told BBC Radio 4’s Today programme: “Yes, it is.”

On changing rooms and toilets, Baroness Falkner said: “Single-sex services like changing rooms must be based on biological sex. 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 suggested trans rights organisations “should be using their powers of advocacy to ask for those third spaces”.

The commission is expecting to lay an updated statutory code of practice before Parliament by the summer, and has said it is working “at pace to incorporate the implications of this judgment” into the code for public bodies setting out their duties under the Equality Act.

Baroness Falkner said the commission evaluates when the law is not followed by organisations and can speak to those bodies, or “use enforcement, compliance tools or whatever, we will be continuing to do that”.

Regarding single-sex hospital wards, she said the NHS will “have to change” their 2019 policy, which says that trans people “should be accommodated according to their presentation”.