People who propose undergoing, are undergoing, or have undergone ‘gender reassignment’, are protected under the Equality Act 2010, from direct and indirect discrimination, harassment and victimisation. This protection does not depend on a person having had medical treatment. Others, perceived as, or associated with, transgender people, are also protected.
The Human Rights Act 1998, also ensures non-discriminatory treatment and provides protection of an individual’s dignity and privacy. The Gender Recognition Act ensures that those who have obtained a Gender Recognition Certificate (GRC) are regarded ‘for all purposes’ as being of their affirmed gender and are treated according to their post-transition gender role or status. It may be considered to be harassment to ask if a person has a GRC, so it is good practice to treat all trans people as though they have obtained one.
It is good practice to ensure that trans individuals, and also those not specifically covered by these laws, but who fall under the wider ‘trans’ or ‘transgender’ umbrella are accorded patient-centred, respectful, sensitive and flexible responses to their unique gender needs. The entire trans population is protected to some degree by the Human Rights Act 1998, that gives further effect to rights and freedoms guaranteed under the European Convention on Human Rights.
- Trans people should be accommodated according to their presentation: the way they dress, and the name and pronouns that they currently use.
- This may not always accord with the physical sex appearance of the chest or genitalia, and
- it does not depend upon their having a Gender Recognition Certificate (GRC) or legal name change;
- it applies to toilet and bathing facilities (except, for instance, that pre-operative trans people should not be required to share open shower facilities);
- views of family members may not accord with the trans person’s wishes, in which case, the trans person’s view takes priority.
In Hospital Wards
Those who have undergone full-time transition to a new gender role should always be accommodated according to their gender presentation.
Different genital or breast sex appearance is not a bar to this, since sufficient privacy can usually be ensured through the use of curtains or by accommodation in a single side room adjacent to a gender appropriate ward. A trans woman in a women’s ward may still need to shave, so privacy must also be ensured for this. Cubicles in toilet and shower facilities should provide adequate privacy for trans people and other patients.
The policy of accommodating according to gender presentation may only be varied under special circumstances where, for instance, the treatment is sex specific and necessitates a trans person being placed in an otherwise opposite gender ward. Such departures should be proportionate to achieving a ‘legitimate aim’, for instance, a safe nursing environment.
This may arise, for instance, when a trans man is having a hysterectomy in a hospital, or hospital ward that is designated specifically for women, and no side room is available; or a trans woman is having prostate surgery and is unavoidably placed in a men’s ward. The situation should be discussed with the individual concerned and a joint decision made as to how to resolve it. At all times this should be done according to the wishes of the patient, rather than the convenience of the staff. See section 1.4, pp 9,10 in A Guide to Trans Service Users Rights (PDF, 731KB).
In Emergency Admissions/Day Unit
In addition to the usual safeguards, where admission/triage staff are unsure of a person’s gender, where possible, they should ask discreetly where the person would be most comfortably accommodated. They should then comply with the patient’s preference immediately, or as soon as practicable.
If upon admission, it is impossible to ask the view of the person because he or she is unconscious or incapacitated then, in the first instance, inferences should be drawn from presentation and mode of dress. No investigation as to the genital sex of the person should be undertaken unless this is specifically necessary in order to carry out treatment.
Cubicles in toilet facilities provide adequate privacy for those whose outward gender presentation does not accord with their genital sex.
Intensive Care – High Dependency
In addition to the usual safeguards outlined in relation to all other patients, it is important to take into account that immediately post-operatively, or while unconscious for any reason, those trans women who usually wear wigs, are unlikely to wear them in these circumstances, and they may also still grow some facial hair so may be ‘read’, incorrectly, as men. Extra care is therefore required so that their privacy and dignity as women is appropriately ensured.
Trans men whose facial appearance is clearly male, may still have female genital appearance, so extra care is needed to ensure their dignity and privacy as men.
Gender Variant Children & Young people
Gender variant children and young people should be accorded the same respect for their self-defined gender as are trans adults, regardless of their genital sex.
Where there is no segregation, as is often the case with children, there may be no requirement to treat a young gender variant person any differently from other children and young people. Where segregation is deemed necessary, then it should be in accordance with the dress, preferred name and/or stated gender identity of the child or young person.
In some instances, parents or those with parental responsibility may have a view that is not consistent with the child’s view. If possible, the child’s preference should prevail even if the child is not Gillick competent.
More in-depth discussion and greater sensitivity may need to be extended to adolescents whose secondary sex characteristics have developed and whose view of their gender identity may have consolidated in contradiction to their sex appearance. It should be borne in mind that they are extremely likely to continue, as adults, to experience a gender identity that is inconsistent with their natal sex appearance so their current gender identity should be fully supported in terms of their accommodation and use of toilet and bathing facilities.
It should also be noted that, although rare, children may have conditions where genital appearance is not clearly male or female and therefore personal privacy may be a priority.