The Shadow Equalities Minister, Claire Coutinho, has today met with the Darlington nurses in Parliament and said that equality and diversity policies need revising, not just in the NHS, but in workplaces across the country.
She also said that leader of the opposition, Kemi Badenoch, backs the nurses’ case.
The nurses have brought a high-profile legal challenge, supported by the Christian Legal Centre, against County Durham and Darlington NHS Foundation Trust after being forced to undress and share a changing room with a man.
Last year, without warning or consultation, a male member of staff who ‘identifies’ as a woman called ‘Rose’, began using the female changing room at Darlington Memorial Hospital.
When nurses, some of whom had experienced sexual abuse as children, raised concern, they were ignored and then told by HR that they needed to be ‘re-educated’ and ‘more inclusive’.
The nurses were alarmed to discover that NHS policies say that any member of staff who merely ‘identifies’ as a woman can use any female changing facilities.
Without support from any trade unions, the nurses have faced no alternative but to start the Darlington Nursing Union (DNU) to support women in the workplace on these issues.
Following a meeting with Health Secretary, Wes Streeting, the DNU has produced proposals to NHS Trusts on ensuring that changing rooms, showers or toilets may only be shared based on biological sex, not self-declared gender identity.
The nurses say that the proposed guidance provides a fair and manageable way forward to protect safe single-sex spaces for all NHS staff in line with the equality law, and also respects the rights of those with the protected characteristic of ‘gender reassignment’, legally known as of ‘transexuals’.
Ahead of the meeting with the nurses, the MP for East Surrey, Claire Coutinho, said: “Women should not be patronised, belittled, or ignored when raising concerns about the safety of single-sex spaces.
“The Darlington Nurses have shown such tremendous courage in standing up for the rights of women working in the NHS. Their shocking case shows what can happen when institutions prioritise their commitment to an ideology above safety. Their fight for fairness has my full support.”
Following the meeting this afternoon, Darlington nurse and President of the Darlington Nursing Union, Bethany Hutchison, said: “We were very encouraged by the meeting. It was refreshing to be supported and backed rather than being told, like we have by our Trust, that we need to ‘broaden our mindset’ be ‘more inclusive’ and ‘compromise.’
“We were told that Kemi Badenoch backs our case and a representative from her office was at the meeting. We were told that equality and diversity policies need to be revisited and revised across the NHS and workplaces in general. Claire said that she would push Wes Streeting for a response to our proposed Darlington Nursing Union policy for safe spaces for women in the NHS.
“Our guidance exposes how our Trust’s policy on these issues is unlawful. ‘Gender identity’ is not a protected characteristic and we should simply not be forced to get undressed in front of a man. We continue to be astonished at how our rights on this issue continue to be breached and discriminated against.
“We hope what we are pushing for provides a common sense and lawful way forward that protects women across the NHS. We believe it should set a precedent for all public services and workplaces in the UK.”
Andrea Williams, chief executive of the Christian Legal Centre, said: “This was a highly constructive meeting, with clear views expressed that equality and diversity policies need to be entirely revisited in the NHS and in workplaces across the country.”
The draft guidance
The draft guidance states that its purpose is: ‘to assist the NHS Trusts to navigate difficulties which may arise at workplaces across the NHS in making arrangements to provide single-sex safe spaces such as changing rooms, toilets, showers, etc., so as to comply with the legal requirements under the Equality Act 2010 and protect the rights, dignity and welfare of all NHS staff.’
It recognises that the: ‘Conditions and available resources will vary widely between NHS Trusts and specific places of work’, but that ‘this guidance outlines the minimal principles and requirements of the law and good practice.’
It states that: ‘All members of staff have a right to respect for their private and family life. Denying a member of staff a basic level of privacy for such everyday activities as changing clothes, using toilets or showers is likely to be a violation of Article 8 of the European Convention on Human Rights.’
Outlining that under the Equality Act 2010, there is ‘no hierarchy’ between the nine protected characteristics, which include, it recognises, however, that the protected characteristics of ‘sex’ and ‘gender reassignment’ are the two most likely characteristics to come into conflict on these issues.
Making clear that NHS Trusts are subject to the Public Sector Equality duty, it says that: ‘Some people believe that they have a ‘gender identity’ which is distinct from, and overrides, their biological sex as a man or a woman. There are people who identify as members of the opposite sex or as non-binary, gender-neutral, gender fluid or other identities. Such subjective ‘gender identity’ is not to be confused with either sex or gender reassignment.’
‘Gender identity not recognised by law’
Recognising that: ‘People’s genuine feelings about their identity must always be treated with respect and sensitivity’, regarding the law it says: ‘However, ‘gender identity’ is not a protected characteristic recognised by the law, and compliance with the legal requirements in relation to biological sex and in relation to gender reassignment must always take priority.’
It says that single sex spaces are not places for interaction and should not be expected to be ‘inclusive.’
Regarding NHS changing room space for transexuals, it outlines the following guidance:
‘In all cases of gender reassignment, it will be inappropriate (and likely unlawful) to require the transsexual member of staff to use private spaces shared either with men or with women.
‘Therefore, in all cases of gender reassignment, providing individual private spaces should be the norm.
‘It may be permissible for more than one person to use the same space as their individual private space at different times, provided that it does not have to be shared at the same time.
‘Offering individual private spaces to members of staff means treating them more favourably than requiring them to share such spaces with others. Therefore, providing individual private spaces for use by transsexual members of staff does not amount to discrimination or harassment on the grounds of gender reassignment.’
‘Sharing private spaces may only take place between persons of the same biological sex. Having to share changing rooms, toilets or showers with members of the opposite sex is likely to amount to sex-related harassment and thus a breach of the Equality Act 2010.’