Letter to Cabinet Secretary for Health

We sent the following email to Jeane Freeman, the Cabinet Secretary for Health, on 14th August, regarding the new Supporting Trans Staff in the Workplace Policy in NHS Lanarkshire.
A copy was also sent to Heather Knox, the interim Chief Executive of NHS Lanarkshire.

Dear Ms Freeman,

Over the last few years, several Scottish health boards have adopted policies designed to support trans staff which infringe on the rights of other staff members, especially those who are female. We are writing to request that these policies are immediately withdrawn and an investigation conducted into the process of how they were introduced, along with a guarantee from the Minister that the Scottish Government remains committed to uphold women’s rights under the UK Equality Act 2010 (EqA).

In her Ministerial Foreword to the GRA Reform Bill, Shirley-Anne Somerville, Cabinet Secretary for Social Security and Older People, acknowledged that the Scottish Government did “not propose to change public policy” and further stated:

I recognise that some organisations have changed policies which are not required in law. And I know that they have done so in a well-intentioned attempt to be trans inclusive. However they may have unintentionally made changes that make women feel uncomfortable and less safe. They need to take account of everyone’s rights when any changes are being considered, to ensure all rights, particularly those of women and trans people, are protected. This includes the protection of women’s rights and safe spaces. [1] (our emphasis)

Amongst the organisations adopting policies in good faith that nonetheless violate the rights of other protected groups are a number of Scottish NHS boards. The latest of these policies, titled Supporting Trans Staff in the Workplace Policy, was circulated to NHS Lanarkshire employees on 7th August 2020. Since then, we have received numerous messages from staff members who told us that their rights are breached by this policy. We are concerned that these employees feel unable to raise the issue openly for fear of repercussions at work.

The NHS Lanarkshire policy not only misrepresents the Equality Act, [2] the Gender Recognition Act (GRA) [3] and the Public Sector Equality Duty, [4] it even frames the mere act of thinking of a male as male as “discriminatory practice”. [5] It reads as if no other protected groups exist. A belief all too evident in NHS Lanarkshire’s Assessment for Relevance Form, [6] intended to ascertain whether a new policy designed for one protected group may have negative impacts on other protected groups. A thorough assessment would find potentially negative impacts on the basis of Age, Disability, Pregnancy and Maternity, Race, Religion and Belief, as well as Sex and Sexuality. However, only those sharing the protected characteristic of Gender Reassignment were considered and no negative impacts found. Under the “Trans umbrella”, [7] the policy also explicitly includes those who crossdress for “erotic pleasure” [8] who, like other trans staff too, must be allowed unquestioning access to opposite-sex spaces. As transvestic fetishism is rare in females, [9] this NHS policy thus allows males to live out their erotic fantasies in the workplace, in female-only spaces. As per Part 2, Chapter 2, Section 26 of the Equality Act, [10] this policy may therefore enable conduct that could constitute harassment by violating the dignity of female staff, and/or by creating an intimidating, hostile, degrading, humiliating or offensive environment for them. This also impacts staff members from culturally conservative or religious backgrounds that do not allow the mixing of the sexes in public spaces.

A policy that decrees that a staff member must be granted access to the showers, changing rooms and toilets reserved for the opposite sex as soon as they assert a trans identity by changing their names and/or pronouns, rides roughshod over the rights of female staff to privacy, dignity and safety in single-sex spaces. Especially as this conflicts with both GRA and EqA. Additionally, guidance published by the EHRC in 2018 makes it clear that only those with a GRC have the right to be considered for access to opposite-sex spaces and may still be excluded from them. That is the opposite of what the NHS Lanarkshire policy proclaims.

As 80% of the NHS Scotland workforce is female, and such policies have also been adopted by NHS Ayrshire and Arran, NHS Forth Valley, NHS Highland, NHS Shetland, NHS Greater Glasgow and Clyde, these practices therefore potentially infringe on the rights of a majority of NHS Scotland staff.

We hope that you would agree that during the ongoing public health crisis it is of paramount importance to ensure that all NHS Scotland staff are appropriately supported while carrying out their duties. Allowing the Scottish health service to adopt policies that deny the rights of female members of staff without even once considering their needs, puts in doubt the Scottish Government’s claim that it remains “committed to protect, respect, and advance the rights of women and girls.”

Finally, although our main concern with these policies lies with the staff whose rights they may breach, it is clear that the rights of female patients may also be violated. Shirley-Anne Somerville wrote in December 2019 that “single sex services are protected as are single sex employment rights and health services. Those exceptions are very important and the Scottish Government supports them.” [11] However, by permitting the use of policies across NHS Scotland which state that the Genuine Occupational Requirement can be met on the basis of self-identification as the other sex, the government is protecting neither single sex services nor single sex employment rights and health services.

Yours sincerely,

Maren Smith
For Women Scotland

[1] Gender Recognition Reform (Scotland) Bill: Consultation
[2] Supporting Trans Staff in the Workplace Policy, NHS Lanarkshire (June 2020). Pages 8, 9, 10, 11 and 16.
[3] lbid, pages 19 and 20
[4] lb, p20
[5] lb, p8
[6] Assessment for Relevance Form, NHS Lanarkshire
[7] Supporting Trans Staff in the Workplace Policy, NHS Lanarkshire, June 2020, p18 
[8] lbid, p17
[9] Shorter Oxford Textbook of Psychiatry (2012), P Cowen, P Harrison, T Burns. OUP, Oxford, p337
[10] Equality Act 2010, section 26
[11] Blog by Shirley-Anne Somerville: Gender Recognition Act consultation

Update 30 September 2020: We received the following response:
(as a pdf)