NHS England is being taken to court by the UK’s equality watchdog for its failure to offer fertility services to transgender patients.
The Equality and Human Rights Commission (EHRC) is pursuing legal action against NHS England in response to trans people not being given equal opportunity to access fertility treatment before they transition.
As a result, the EHRC believes the NHS may be breaking the law and discriminating against transgender people. The commission sent a pre-action letter to the public service in August 2018, for its failure to offer standard fertility services to transgender patients before they undergo treatment.
After receiving a reply from the NHS, the EHRC is proceeding with a judicial review.
Rebecca Hilsenrath, chief executive of the commission, told the Guardian: “We have received a comprehensive response from NHS England to our letter regarding the provision of fertility services for transgender patients before they undergo treatment for gender dysphoria.
“We are proceeding with our judicial review claim and will remain in discussions with NHS England about the need to ensure the transgender community can access health services free from discrimination, and that individuals do not have to choose between treatment for gender dysphoria and the chance to start a family.”
The Opportunity to Have Children
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Transgender people who are undergoing treatment for gender dysphoria often face infertility as a result of the treatment.
However, by extracting and storing eggs and sperm before gender re-assignment, it is possible for a trans person to become a biological parent later in life.
Martha, who has a 14-year-old trans son, told the i newspaper:
“The main NHS clinic refuses to have any conversation on a practical level about fertility preservation until a trans person is 16, which means that plenty of teenagers are left to make the decision last minute.
“My son is itching to get a full dose of hormones so he can start puberty like the rest of his peers. His younger brother, who is 12, is starting to look more developed than him. Having his eggs frozen adds a lot of extra time to that period before transitioning.
“He understands that fertility preservation and having a child is a big decision, but as a teenager, he (rightly) doesn’t yet feel any ‘biological imperative’ towards having his own biological children.
“This is something that people typically only start to feel in their twenties and thirties. I just want to preserve the opportunity for him to have his own kids if he chooses to take up that option.”
The Right to Enjoy a Life Free from Discrimination
Image: Pride London/Wikimedia Commons
Article 14 of the Human Rights Convention, offers protection from discrimination.
It states, “The enjoyment of the rights and freedoms set forth this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or status.”
The Equality Act 2010 and Human Rights Act 1998, which incorporated the Human Rights Convention into UK law, protect us from discrimination when dealing with public bodies and services.
The EHRC has laid out its position that, when accessing fertility services via the NHS, transgender people may be facing discrimination.
NHS England believes it is not responsible for providing fertility treatment to all patients, and the decision lies with individual Clinical Commissioning Groups.
As a result, NHS England believes the EHRC has misjudged its case.
A spokeswoman for NHS England told the Guardian: “NHS England has responded in detail to the EHRC, explaining why we believe their request is both misjudged and potentially unfair to NHS patients. If, however, they still decide to sue the NHS, the courts will consider the matter in the usual way.”
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