Gender reassignment discrimination and prison healthcare

NHS bodies increasingly find themselves subject to complaints of discrimination on the grounds of gender reassignment, due to a growing awareness and understanding within the trans community of their rights as patients. In particular, NHS providers of prison healthcare are faced with a number of sensitive issues and complaints in relation to the treatment of transgender prisoners.

Transgender equality is a rapidly developing area of policy and law. It is therefore important that NHS providers of prison healthcare ensure that they have adequate training and policies in place for the prevention of discrimination in the care and management of transgender prisoners.

In the UK, the two key pieces of legislation that protect transsexual people are the Equality Act 2010 (EqA 2010) and the Gender Recognition Act 2004 (GRA 2004). There are also regulations that apply specifically to transgender prisoners; the Prison Service Instruction (PSI) 17/2016.

The Equality Act 2010

Discrimination under the EqA 2010

The EqA 2010 provides legal protection from discrimination and harassment. Gender reassignment is one of the nine protected characteristics covered by the Act. A person has the protected characteristic of gender reassignment if that person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex.

Under the Act, a reference to a person who has the protected characteristic of gender reassignment is a reference to a transsexual person. Therefore, a woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment.

A key point to note about the definition of gender reassignment under the EqA 2010, is that a person who ‘is proposing to undergo’ the process of changing their sex is protected i.e. they need not have undertaken any actual steps towards the process of transitioning. Further, a person living in the opposite gender without having undergone any medical procedures will be protected. Unlike earlier legislation, there is no requirement to be under medical supervision to qualify for protection under the EqA 2010.

There are four types of prohibited discrimination in respect of gender reassignment: -

• Direct discrimination – when a transsexual person is treated less favourably than others because of gender reassignment
• Indirect discrimination – where a transsexual person is particularly disadvantaged by a provision, criterion or practice which applies to everyone
• Harassment – when unwanted conduct related to gender reassignment causes an intimidating, hostile, humiliating or offensive environment for that person
• Victimisation – when a person is subjected to a detriment because they have made or supported a complaint about gender reassignment discrimination.

Application to the NHS

The above provisions apply to patients as NHS service users. The EqA 2010 prohibits discrimination by a service provider (concerned with the provision of a service to the public) against a person requiring the service. Therefore, NHS trusts must not discriminate against transsexual patients because they have the protected characteristic of gender reassignment.

NHS bodies (including NHS providers of prison healthcare) must also have regard to the Public Sector Equality Duty set out in Section 149 EqA 2010, which sets out that they must have due regard to eliminating discrimination prohibited by the EqA 2010 and advancing equality of opportunity and fostering good relations between those who share a protected characteristic and people who do not share it.

Gender Recognition Act 2004

The Gender Recognition Act 2004 (the Act) allows transsexual people to gain legal recognition of their acquired gender by registering for a Gender Recognition Certificate (GRC). The application is made to the Gender Recognition Panel who will determine whether a GRC should be issued on the basis that the applicant has lived in their acquired gender for two years and intends to live the acquired gender until death. An applicant does not have to have had gender reassignment surgery, but have been diagnosed as gender dysphoric. Where a full GRC has been issued to a person, their gender becomes for all purposes the acquired gender.

Prohibition on disclosure of information

The Act has important implications for NHS trusts, particularly in relation to the provisions on prohibition of disclosure of information relating to a person’s application for a GRC or, if a GRC is issued, their previous gender. Under section 22 of the Act, it is a criminal offence for a person who has acquired, in an official capacity, protected information regarding an individual’s gender identity to disclose that information to any other person.

This clearly affects NHS providers of prison healthcare, as they are likely to acquire such information in relation to prisoners requiring healthcare via patient records.  

Potential defences

There are a number of defences to this prohibition set out in section 22(4) of the Act. These include where the information does not enable that person to be identified and where the person has agreed to the disclosure of the information.

In addition, there is a further defence which will have particular importance to NHS bodies as service providers. The Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No2) Order 2005 provides a defence in relation to disclosure for medical purposes. It will not be an offence under section 22 of the Act to disclosure protected information if the disclosure is made to a health professional, for medical purposes; and the person making the disclosure reasonably believes that the subject has given consent to the disclosure or cannot give such consent.

Prison Service Instruction (PSI) 17/2016

The new PSI, issued in November 2016, governs the care and management of transgender prisoners in England and Wales. It reflects the growing awareness of transgender issues in prison with the aim that all transgender offenders in the care and under the supervision of prisons be treated fairly and lawfully.

The new PSI states that ‘Staff must not ask to see a GRC but can request sight of a birth certificate. Where an offender does offer a GRC as form of evidence and identity, they must be treated in the gender identified on the certificate.’ In addition, written consent must be obtained to disclose the gender assigned at birth ‘the purpose of gaining such consent for transgender offenders and those who have gained legal recognition of gender reassignment via a GRC is to gain a more informed approach in planning their care and management.’

Rule 12(1) of the Prison Rules 1999 requires that women prisoners shall normally be kept separate from male prisoners. The previous PSI (7/2011) stated that prisoners would ordinarily be housed according to their legally-recognised gender. The new PSI provides for a more flexible approach to housing transgender prisoners as ‘transgender offenders must be asked their view of the part of the prison estate (i.e. male or female) that reflects the gender with which they identify’. Each transgender offender will be assessed on a case-by-case basis by a Transgender Case Board to determine where they will be housed.

Practical considerations for NHS trusts and providers of prison healthcare

Studies have shown that transgender people tend to experience higher rates of mental health issues and risk of suicide. Such concerns may be aggravated when a transgender individual enters prison; therefore, the issue of where a transgender prisoner is housed is an important one, which can be closely linked to their mental health and well-being.

The Prisons and Probation Ombudsman’s learning lessons bulletin (the PPO bulletin) on transgender prisoners recommends lessons to be learned that reflect the new PSI in relation to the care and management of transgender offenders in prison. It recommends that the ‘location of a transgender prisoner should be proactively evaluated based on an individual assessment of their needs, and the possibility of residing in the estate of their acquired gender should be given appropriate consideration. The location agreed must allow them to live safely in their gender.’

The PPO bulletin also outlines lessons to be learned in respect of mental healthcare and Assessment Care in Custody and Teamwork (ACCT) procedures for monitoring and supporting prisoners at risk of self-harm or suicide. It recommends that ‘ACCT case reviews for transgender prisoners should be multidisciplinary, and should be attended by all relevant people involved in a prisoner’s care.’    

Care should be taken to use appropriate names and terminology when treating transgender prisoners and in relation to their health records. Where a person is transgender, it is important not to refer to this fact in patient records unless the person has consented to it. Providers of prison healthcare may find themselves in a difficult position when there are medical reasons why a transgender prisoner’s previous gender needs to be referred to. In these circumstances, the medical professionals should seek consent from the prisoner for their gender history being recorded in their notes and steps should be taken to ensure that access to those notes is limited to those who need to be aware of the prisoner’s gender history for clinical reasons.

Department of Health guidance recommends that all staff are trained on these issues in relation to transgender patients. Hill Dickinson’s specialist employment team provides training on the legislation in this area and its implications for NHS bodies.  

Our next training event, ‘Transgender rights and the NHS’, will take place on 5 May 2017 at our offices in London. It is a complimentary half-day training session for NHS professionals who wish to understand the legislation relating to gender reassignment and its impact on employment and service delivery in the care sector. An invitation will be circulated in due course with further details of the event.