NHS Could be Taken to Court for Denying Transgender Patients Equal Fertility Rights

By Jenn Selby, Freelance News Editor 6 Aug 2018

 NHS England is being threatened with legal action if it does not start offering fertility treatments to transgender patients.

At the moment, transgender patients are not given the standard option of having their eggs or sperm stored.

Human rights watchdog the Equality and Human Rights Commission (EHRC) has deemed this routine conduct “outdated” and discriminatory.

The NHS says the matter is one for government ministers to decide.

Who Decides Who Gets Fertility Treatment?

The EHRC says that the decision over who gets offered the extraction and storage of eggs and sperm – medically known as gamete extraction – is down to the Clinical Commissioning Groups (CCGs).

CCGs were created following the Health and Social Care Act in 2012 to replace Primary Care Trusts. They are the medical statutory NHS bodies who are responsible for the planning and commissioning of health care services in their local areas.

“But many choose not to [offer this service]” to transgender patients, the watchdog said.

In response, the EHRC sent a letter to NHS England as a first step towards a judicial review into the gamete extraction and storage ‘selection process’. They are asking for the same service to be made fully available to anyone receiving treatment for gender dysphoria.

What is Gender Dysphoria?

A doctor fills out a health form in hospitalRawpixel/Unsplash

Gender dysphoria is defined by the NHS as a condition whereby a person suffers distress because their biological sex and gender identity are mismatched.

Rebecca Hilsenrath, Chief Executive of the EHRC, said: “Our laws and our values protect those who seek treatment for gender dysphoria.

“This means that, where appropriate, treatment should be made available in order to ensure that access to health services is free of discrimination. A choice between treatment for gender dysphoria and the chance to start a family is not a real choice.

“We have asked NHS England to reflect on the true breadth of their statutory mandate and the impact on the transgender community of these outdated policies.”

A choice between treatment for gender dysphoria and the chance to start a family is not a real choice.

Rebecca Hilsenrath, CEO of the Equality and Human Rights Commission

NHS Says Ministers Must Decide 

The NHS claims that the EHRC has “misplaced their fire” by aiming the letter at the health service rather than sending it directly to the government.

Speaking to the BBC, an NHS spokesperson said: “Decisions on which services are commissioned by NHS England are taken by ministers based on advice from an independently chaired panel of health experts and patient representatives, using a process set out in primary legislation.”

However, the EHRC believes that NHS England has the legal power to offer fertility treatment to transgender patients as a “core service”. This means that all CCGs can, and should, offer it without prejudice.

NHS England has 14 days to respond to the EHRC’s letter.

“Their response will determine whether or not further action is necessary,” an EHRC spokesperson added.

How are Transgender People Protected by Human Rights Law?

Transgender or non binary person portraitJorge Saavedra/Unsplash

The key areas of human rights law which apply to the protection of trans rights are equality and gender recognition.

Under the Equality Act, it is illegal to discriminate against a transgender person in employment, education, the sale of goods and supply of services, public functions and housing. This includes direct discrimination, harassment and victimisation, as well as indirect discrimination, where policy or standard practice puts a particular person or group of people at a disadvantage. Schools, police departments and health centres are, therefore, legally required to respect the rights of trans people.

A transgender person does not need to have undergone surgery or any treatment to be protected under this law. However, there is no protection for those who do not intend to undergo any reassignment process.

The Gender Recognition Act allows trans people over 18 to be recognised by the gender they self-identify as. This means they can get new birth certificates and be given full recognition in law for all purposes, including marriage. The law also protects an individual’s right to privacy over this change.

To use this law, an individual has to have medical evidence and be able to prove they have lived as their new gender for at least two years. The law has been criticised for being an expensive, ‘bureaucratic’ and ‘humiliating’ experience.

Praise for EHRC Action to Protect Human Rights

LGBTQ+ charity Stonewall has praised the EHRC action as a stand against discrimination in the health service.

Paul Twocock, Director of Campaigns, Policy and Research at Stonewall, said: “We welcome this challenge from the Equality and Human Rights Commission (EHRC). It’s vital that trans people have fair and equal access to fertility treatment, and for many that should include the option of storing eggs or sperm before medical transition.

It’s vital that trans people have fair and equal access to fertility treatment.

Paul Twocock, Director of Campaigns, Policy and Research at Stonewall

“As the Government’s national LGBT survey demonstrated, a lack of provision of fertility services is just one element of the discrimination experienced by trans people, as well as lesbian, gay and bi communities, when accessing healthcare in the UK.

“We know the Government are committed to improving health and social care provision for all LGBT people, and addressing barriers to fertility support would be a positive step forward in this process.”