New guidance from NHS England placing biological sex at the heart of policies governing hospital accommodation and staff facilities has been welcomed by the Darlington Nursing Union and the Christian Legal Centre.
The guidance follows the UK Supreme Court’s judgment in For Women Scotland Ltd v The Scottish Ministers, which established that “sex” in the Equality Act 2010 means biological sex. It also reflects the Equality and Human Rights Commission’s updated statutory Code of Practice for services, public functions and associations, which came into force on 5 August 2026.
Two guidance documents have been published, covering same-sex accommodation for patients and the provision and use of physical facilities for NHS staff.
Under the patient-accommodation guidance, transgender patients and others with the protected characteristic of gender reassignment should ordinarily be accommodated according to their sex as registered at birth.
The guidance states that clinical need should always be the first consideration, while the privacy, dignity and safety of every patient must be maintained. Decisions about accommodation and care should be person-centred and made, wherever possible, in partnership with the patient.
When deciding where a patient should be placed, NHS staff are advised to consider three central questions, including what are the patient’s clinical needs? What is safe and fair? How can the patient’s privacy and dignity be respected?
Where it would not be clinically appropriate to care for a transgender patient in a ward or bay corresponding to birth sex, providers should identify alternative arrangements.
These decisions should be based on the patient’s individual circumstances and take account of wider clinical requirements, including infection control and the needs of patients receiving end-of-life care.
The guidance recognises that there may be exceptional circumstances in which clinical needs and same-sex accommodation requirements cannot both be met. In such cases, clinical need must take priority, with additional care taken to protect the privacy, dignity and safety of all patients. The reasons for the decision should be clearly recorded, and any departure from the national guidance reported as a breach.
Breaches must be monitored and reported
All breaches of same-sex hospital accommodation must be reported through the Strategic Data Collection System.
NHS providers are also expected to monitor and report locally on toilet and bathroom breaches, the availability of women-only day spaces in mental health inpatient units, and the mixing of the sexes in psychiatric intensive care units.
This goes beyond recording incidents. NHS bodies are expected to identify recurring problems and take action to eliminate breaches of the guidance.
NHS organisations have been required to report breaches of same-sex accommodation rules since April 2011. NHS England placed its previous guidance under review following the Supreme Court judgment of 16 April 2025, while continuing to require providers to protect patients’ privacy, dignity and safety and report mixed-sex accommodation breaches.
Guidance also covers NHS staff facilities
The separate staff-facilities guidance applies to NHS trusts, NHS foundation trusts and integrated care boards.
It covers the provision and use of changing, washing and showering areas, toilets and staff accommodation.
Pending revision of the EHRC Employment Code of Practice, NHS organisations are instructed to apply the relevant principles in the statutory Code for services to workplace facilities.
NHS organisations must review and update their existing policies on staff facilities, or develop policies where none currently exist, to ensure compliance with their legal duties.
The guidance states that these policies should be consistent with the Workplace (Health, Safety and Welfare) Regulations 1992, the Equality Act 2010 and the Gender Recognition Act 2004.
The new approach directly addresses the kind of workplace dispute faced by the Darlington nurses, whose concerns arose after a biologically male colleague was permitted to use a female staff changing room at Darlington Memorial Hospital.
NHS boards told to review local policies
NHS England is writing to all NHS trusts and integrated care boards in England to inform them of both guidance documents and require chief executives and boards to respond.
Boards are expected to ensure that:
NHS England is asking boards to ensure that the new guidance is reviewed by relevant board-level leaders and by those responsible for clinical operations, staff, estates, facilities and communications.
Local policies and practices must comply with the law and the new guidance, with clear plans established to address any areas requiring change. Organisations must also oversee plans to meet the NHS Constitution’s pledge to eliminate mixed-sex accommodation.
Boards must ensure that staff understand what is expected of them and know where to obtain advice in complex cases. Arrangements should support consistent decision-making and allow difficult cases to be escalated when necessary. Workplaces should remain safe, respectful and inclusive, with clear expectations around dignity and protection from bullying, harassment and discrimination. Organisations will also be expected to monitor the impact of their plans, respond to problems as they arise and review decisions when new evidence emerges or circumstances change.
The guidance therefore places direct responsibility on NHS chief executives and boards to review their local arrangements and bring policies into line with the law.
The Darlington Nursing Union has welcomed that instruction but warned that board-level responsibility must be accompanied by effective national oversight, transparent enforcement and consequences for trusts that fail to act.
Darlington nurses forced to take legal action
The Darlington Nursing Union was founded with support from the Christian Legal Centre, following the experience of nurses at Darlington Memorial Hospital who raised concerns about a biologically male colleague being permitted to use a female staff changing room under NHS policies.
In January 2026, an Employment Tribunal ruled that requiring the nurses to share the changing room had violated their dignity and created a hostile, humiliating and degrading environment.
The tribunal also upheld an indirect sex discrimination claim arising from the Trust’s policy and its failure to take proper account of the effect on female staff.
The tribunal’s findings concerned the policy adopted by County Durham and Darlington NHS Foundation Trust and the handling of the nurses’ concerns, rather than the personal conduct of the individual colleague.
The Trust subsequently apologised and paid seven nurses a total of £187,000 in damages. It also committed to reviewing its policies and facilities in response to the judgment.
Bethany Hutchison, President of the Darlington Nursing Union, said:
“Biological sex is not an optional belief. It is a material reality and, following the Supreme Court’s judgment, it is the basis upon which sex must be understood in equality law. We therefore welcome this clear and necessary guidance from NHS England.
“The test now is whether NHS trusts will actually follow it. Too many NHS institutions have been ideologically captured on these issues, leaving frontline women to defend rights and protections that their employers should have upheld from the outset.
“The Darlington nurses should never have had to take their own employer to court to secure privacy, dignity and lawful single-sex facilities. Enforcement cannot continue to depend on the courage and personal sacrifice of individual nurses.
“NHS England, regulators and trust leaders must now ensure that every NHS policy is brought swiftly and lawfully into line with this guidance, the EHRC Code and the Supreme Court’s ruling. There must be clear oversight, meaningful accountability and consequences for trusts that refuse to comply.”
National guidance on pronouns still needed
The Christian Legal Centre has also welcomed the renewed emphasis on biological sex but warned that the new documents do not resolve the separate issue of pronoun use by healthcare professionals.
The Christian Legal Centre supported registered nurse Jennifer Melle after the NHS Trust employing Jennifer Melle investigated and disciplined the nurse and referred the nurse to the Nursing and Midwifery Council. The action followed an incident in which Jennifer Melle declined to use female pronouns for a biologically male patient during a clinical discussion.
The Trust later abandoned its disciplinary proceedings. The Nursing and Midwifery Council also closed its fitness-to-practise investigations with no further action, concluding that there was no case to answer.
Jennifer Melle subsequently called for national guidance making clear that NHS staff should not be compelled to use preferred pronouns or penalised for holding and expressing lawful religious or gender-critical beliefs.
Andrea Williams, chief executive of the Christian Legal Centre, said:
“This is welcome and long-overdue guidance. It has taken a long-fought battle, led by courageous women such as the Darlington nurses, to put biological reality back at the heart of NHS policy.
“But an important gap remains. The guidance does not give NHS staff the clarity and protection they need over pronoun use. Jennifer Melle was investigated, disciplined and referred to the Nursing and Midwifery Council after declining to use female pronouns for a biologically male patient. She was eventually cleared, but no nurse should have to endure that ordeal for using biologically accurate language.
“NHS England must now make clear that healthcare professionals cannot be compelled to use preferred pronouns or penalised for declining to express beliefs about gender identity that they do not hold.”
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