Male-born sex offenders who self-identify as women can be placed on female-only NHS wards, hospital trusts have said in guidance.
Devon, Oxford and Nottinghamshire hospitals all tell staff that a criminal history should be part of a risk assessment when placing male-born people on female-only wards, but do not say it is a bar to admission.
It comes as The Telegraph has found that NHS Trusts across the country have issued guidance that says patients should be admitted based on the gender they identify with and therefore can choose which ward, lavatory and shower facilities they use.
Some trusts have labelled those patients who express discomfort as transphobic, compared them to racists in official guidelines and ordered staff to report them to police for hate crimes.
Until 2019, one hospital group instructed medics to withdraw treatment if a female patient refused to accept a physically intact male on women-only wards.
Oxford Health NHS Foundation Trust notes that the “risk of sexual offending in a trans context is very rare”, adding that where there was “significant risk” staff would “apply the same robust mitigation that we would to a non-trans patient to ensure a safe therapeutic environment”.
‘Trans people should feel safe in hospital’
Dr Jane Hamlin, president of the Beaumont Society, a trans support group, said: “If anyone starts off with an assumption that a trans person is a sex offender - or even a potential sex offender - that is discrimination and transphobia. All patients, including trans people, should feel safe when in hospital.”
However, the policies have been put in place despite an order from the Department of Health that hospitals have to provide single-sex wards.
Medical staff have warned that the guidance documents put them in breach of their code of conduct and leave the most vulnerable at risk.
Staff are now too scared to raise safeguarding issues, with reports of nurses who have spoken up having lost their jobs.
Doctors say that self-identification is particularly an issue on mental health wards, where patients may be suffering delusions, and which are locked so patients cannot leave. Allegations of rape on one such unit have been made.
One nurse told The Telegraph that risk assessments of patients, including those with a known history of sexual offences, did not take place as staff were too busy.
“In-patients are often frail, elderly and confused and we as nurses have a duty to protect them,” she said.
“They are not being safeguarded and they are not getting the dignity and the privacy they deserve.
“The public believe that we have single-sex spaces for our most vulnerable, our mothers, our grandmothers, but it is simply not true. NHS wards are replicating what is happening in jails.”
She said that one mental health trust says patients expressing discomfort “could result in seclusion and long-term segregation”.
Admissions based on gender
The punitive impact of questioning the policies comes against a backdrop of some trusts stating the male-born sex offenders can be admitted to female-only wards on the basis of self-identification.
Devon Partnership NHS Trust says that patients “will be admitted based on the gender which they identify as at the point of admission” and it will not be based on physical characteristics or the person proving they have legally changed their gender or name, as they claim this is illegal.
It states that risk assessments must be carried out but indicate that this does not prevent male-born sex offenders being placed on a female-only ward.
“Where a transgender woman is admitted and has a history of sex offending, decisions regarding risk should include consideration of whether they are being prescribed anti-libidinal medication that would be expected to reduce sexual risk,” the document states.
Devon guidance also states: “Transgender people must be able to use the facilities of their preferred gender while admitted. This includes shower rooms, toilets and single sex lounges.”
It acknowledges that “there may be occasions where it is lawful to refuse access to single-sex facilities … but only if this is justified and is proportionate against a legitimate outcome.”
Oxford states that “if the service user has a sex-offending history, risk should be managed in the same way as it would be with any other client, irrespective of gender”.
It said its guidance “follows the legal parameters” and “sets out that every case is individually assessed, taking into account risk factors to the patient as well as other ward users”.
Nottinghamshire Healthcare NHS Foundation Trust guidance says that when deciding on the treatment setting “previous history of sexual offending and/or domestic violence or abuse should be taken into account”.
A Devon spokesman said that it is “a sensitive issue” and they are currently reviewing the policy to ensure “the safety of our patients and staff”.
A spokesperson for Nottinghamshire Healthcare NHS Foundation Trust said: “All our staff follow guidance to ensure the safety and dignity of our patients in line with government legislation, including carrying out a risk assessment to ensure they are given appropriate care.”
Mixed-sex wards guidance is dangerous and creates an unsafe environment, say medics and campaigners
When hospitals were ordered to eliminate mixed-sex wards more than a decade ago, patients were hopeful it would mean that they would have privacy and dignity during a difficult time.
But since then female patients have been accused of hate crimes, placed in seclusion and even threatened with their treatment being withdrawn for questioning why men who self-identify as women are placed in single-sex accommodation.
In recent years trusts across the country have quietly written guidance for their staff which campaigners say is “dangerous” and “deliberately misinterpreting” the law.
The basis for the documents comes from an instruction by NHS England, which states that hospitals allow patients to be “accommodated according to their presentation: the way they dress, and the name and pronouns they currently use”.
As a result, a physically intact male has the right to choose to be accommodated on a female ward and to use women’s toilets and facilities.
There is no requirement for the person to have begun to legally change their gender, as is specified under equality laws, or to provide any proof that they are living as the opposite sex.
From that starting point, NHS Trusts, many under the influence of lobby groups such as Stonewall, have written their own policy and guidance documents on treating transgender patients, which medics and campaigners warn have created an “unsafe” environment.
One nurse said that staff are less likely to report safeguarding concerns as they are “fearful of discipline of censure and in some cases risk being charged with a criminal offences” and often have their concerns dismissed.
Baroness Nicholson of Winterbourne, chair of Parliamentary campaign group Children and Women First, said that by “manipulating and distorting” equality laws, the NHS is denying women the right to “dignity and privacy” in their treatment.
“The National Health Service is the best in the world, we can’t afford to have the NHS go off track like this, it will be the laughing stock of the world,” she added.
Change in policy
The Telegraph has analysed policies issued by more than 20 trusts in England and has found that a number of them order medics to call the police and report a hate crime if patients do not accept another person’s gender identity.
In guidance from University Hospitals Birmingham, still available on their website, it states that “treatment may also be withheld” if a patient discriminates against a trans person.
In 2019 it was replaced with new guidance which removed that part of the policy, a spokesman said.
Dr Lucy Griffin, a frontline clinician, has warned MPs and peers that doctors “are really worried about the toolkits that have gone out within individual organisations largely about things like single-sex wards”.
“Some of them are so punitive,” she said. “One organisation is suggesting that any woman who objects to a male on a single-sex ward is put in seclusion, as in a psychiatric setting.”
Other policies state that trans people have “equal access” to single-sex facilities, which includes “male or female-only support groups” as well as single-sex wards and toilets for those being treated by the Central and North West London NHS Foundation Trust.
Acknowledgement of the risks
The Trust recognises that under equality laws a male-born person could be excluded from group counselling sessions “provided for female victims of sexual assault” but says it “would need to be objectively justified”.
The Trust says that there is “no instance” where a patient should be admitted to the “incorrect facility” but that there “may be instances when further consideration may be needed as to how best to manage a trans patient. For example, a sexually disinhibited pre-operative transsexual may be very distressing for other patients on a single-sex ward.”
But despite acknowledgement of the risks, the documents suggest that any patients who question the decision will be treated as “bigots”, a practising nurse who has asked to remain anonymous for fear of reprisals has said.
Nottinghamshire Healthcare NHS Foundation Trust states that “concerns alone are insufficient” to justify moving wards, adding: “Just as the Trust will not adapt practice in light of Racist concerns expressed as discomfort, so the Trust will not adapt practice in light of Transphobic concerns expressed as discomfort.
“This will include such things as use of toilets, changing facilities, and single-sex accommodation.”
In guidance echoed by other hospitals, Sussex Partnership NHS Foundation Trust, which provides mental health services, states that there may need to be additional actions to manage risks but “a trans person should not be moved solely in response to this enhanced risk and if it is deemed necessary to move someone the focus should be on the person exhibiting prejudicial behaviours not the person affected by them”.
Some of these policies have already faced challenges.
The Bristol, North Somerset and South Gloucestershire NHS Trust abandoned plans for a new transgender toolkit after women complained about the impact it would have on single-sex provision.
Officials carried out an Equality Impact Assessment of the guidance and found “callous” disregard for women’s safety. The toolkit made it “seem impossible to differentiate between a trans patient, and a male patient who wishes to access a women’s ward for other reasons”, the review noted.
Baroness Nicholson has written to the Government calling for them to suspend the NHS Guidelines, which are seen as the root of the individual policies, with the Parliamentary campaign group Children and Women First currently hearing evidence from both patients and medics on the impact of the deviation from single-sex spaces.
Baroness Nicholson said that they have heard evidence of rape on a psychiatric unit, of physically intact males having to be removed from wards for masturbating, of people being reported for hate crimes, and of nurses losing their jobs for questioning new teaching that did not fit with their training.
Baroness Nicholson said that the concern was that the law is being “purposefully misused”.
Equalities Act exemption
Hospitals are exempt from parts of the Equalities Act 2010, and some NHS Trust guidelines both ignore this fact and go further than Parliament in saying that people should be allowed into single-sex wards based not on their gender presentation but the one in which they self-identify.
“It has cost a lot of women their jobs, it has distorted the National Health Service and it has hurt a lot of women. The loss of dignity, and the positions that it has put the medical professionals in in hospitals is not right,” she said.
Dr Jane Hamlin, president of the Beaumont Society, a trans support group, said: “If anyone starts off with an assumption that a trans person is a sex offender - or even a potential sex offender - that is discrimination and transphobia. All patients, including trans people, should feel safe when in hospital.
“Clearly, if any patient has a history of violence, however they identify, then special arrangements might have to be made for them. But to assume that a trans woman could be a danger to other patients because she has not fully transitioned is outrageous. As long as the guidance issued by the NHS Trusts is clear, fair and non-discriminatory then why should anyone object?”
An NHS spokesman said: “Hospitals must safeguard the safety, privacy and dignity of all patients, including following the legal requirements established by Parliament.”
CORRECTION: An earlier version of this article reported that hospitals were exempt from the Equalities Act and did not have to admit patients to single sex wards that did not match their legal gender. Hospitals are only exempt from some provisions and under the Act have to admit people to single sex spaces based on the gender they present as, except in exceptional circumstances. The article has been amended.