The new NHS England guidance says trans people should be accommodated on hospital wards according to their biological sex, and that staff facilities should be reviewed. On Jeremy Vine's BBC Radio 2 show I argued this is discriminatory and unworkable, and that the Equality Act still protects gender reassignment.
What happened on Jeremy Vine's BBC Radio 2 show?
I was invited on to talk about the guidance with Hadley Freeman, a columnist at The Sunday Times. Hadley's view was that the NHS has been slow to reach this conclusion and that gender identity is a feeling rather than a fact. Jeremy asked, fairly, how the two of us could be so far apart on what he called a matter of fact.
My answer was that we do not need an argument between two people on a radio programme to settle this, because British law already recognises it. The Equality Act 2010 lists gender reassignment as one of its nine protected characteristics. People who are trans are named in that Act, and have been for years. I also said what I felt most strongly at the time: I wish we were having some good news for trans people at the moment, because they really need it.
What does the new NHS guidance actually say?
NHS England published two documents on 15 October 2026, introduced by a letter to chief executives and boards. One is revised guidance on same-sex accommodation for patients, called Privacy, dignity and safety in hospital accommodation. The other is new guidance on NHS staff facilities. Both follow the Equality and Human Rights Commission's Code of practice for services, public functions and associations, which came into force on 5 August 2026.
On patients, the letter says that to keep hospital accommodation single-sex under the Equality Act, trans people and others with the protected characteristic of gender reassignment should be accommodated in line with their biological sex. On staff, it recommends that organisations review toilets, changing rooms, washing and shower facilities and shared staff accommodation, and consider lockable single-occupancy facilities. It also says no one should be left without suitable and sufficient provision.
The letter asks boards to make sure their local decisions are lawful, proportionate, evidence-based and clearly documented. It asks them to monitor the impact, revise decisions when circumstances change, draw on lived experience, and keep workplaces free from bullying, harassment and discrimination. I only have the letter in front of me rather than the full documents, so how each hospital will apply the detail on a ward is something we will all be finding out.
Does the Equality Act still protect trans people?
Yes. The Act is the statute, and gender reassignment is still a protected characteristic in it. Trans people are still protected from discrimination, harassment and victimisation in services and at work. The letter itself says the NHS is here for everyone and that its responsibility is care that is safe, compassionate, dignified and inclusive for all patients.
Statutory guidance carries real weight, and trusts will treat this seriously. But it is guidance on how to apply the Act, and the wording of the letter leaves room for judgement. It says these are complex issues needing careful judgement, and that decisions must be proportionate and documented. A decision that treats a trans patient badly has to be justified, and that is a useful thing for you to know.
Why is sorting people by biological sex so hard to do?
I asked Jeremy on air who is going to do the policing at the hospital gate. Are we checking genitals? Are we testing chromosomes? Not everybody's chromosomes follow the ordinary pattern, and intersex people have many variations. A rule that depends on knowing somebody's chromosomes is not one a ward can run without asking questions nobody should be asking a person who is ill.
There is also the privacy of everybody on the ward, trans people included. If a trans woman who looks very much like a woman is put on a men's ward, or a trans man on a women's ward, other patients will wonder why, and she or he is outed in front of strangers. If instead somebody is moved to a side room and singled out, the same thing happens by a different route. The dignity, privacy and safety of all people has to include trans people, and I think that is the part that keeps getting forgotten.
Hadley said that third spaces and gender-neutral spaces exist. Jeremy pointed out that in a lot of hospitals they do not, and that this is the whole point of the story. The letter asks trusts to consider lockable single-occupancy facilities for staff, but it does not say where the space or the money comes from. I said on air that the NHS is stretched, and I am a doctor who knows that from the inside: it is struggling to deliver excellent care to everybody already.
What about the safety argument?
Hadley's case was that women's spaces exist because male bodies are bigger and stronger, and that men are statistically more likely to commit violence. Hadley was clear that not every man who identifies as a woman is a predator. My response was that safety is a very good reason for a ward to have rules, and I agree that women fought hard for the spaces and rights they have.
But those rights belong to everybody: privacy, dignity, safety, access to healthcare. We need protecting from bad people, not from every person who looks a certain way or has certain anatomy. Some men have committed crimes and so have some women, and labelling everybody in a category as a potential predator does not make anybody safer. A ward is made safe by how it responds to behaviour: a risk assessment, a nurse who acts on a concern, a side room offered for a real reason. Those tools work whoever the person is. And trans people are patients who need to feel safe too.
When Jeremy asked about the tall bearded man who simply announces he is a woman, I said that this example is itself discriminatory, because it makes the rule about the least typical person rather than the ordinary trans patient. I also suspect that someone who looks very much like a man would choose not to stand out on a ward where he would feel out of place. The sad reality is that trans people already avoid healthcare, because they are scared of being discriminated against.
What does this cost, and who pays?
A trans woman placed on a men's ward by the guidance's logic pays in exposure, fear and loss of privacy at a time when she is ill. A trans man placed on a women's ward pays the same. A non-binary person is placed in a category that was never theirs. Some people will pay by not going at all: they will delay an appointment, put up with symptoms or turn down a bed. Staff pay in a different way, when a changing room or toilet they have used for years becomes a source of anxiety or a flashpoint with colleagues.
I said on the programme that it is hard to see how this guidance can be enforced without being discriminatory. I stand by that. The cost lands first on trans people, and also on the nurses and managers who will be expected to carry out something that is hard to carry out kindly.
What can you do as a patient or a member of staff?
Do not let this keep you from care. If you are unwell, get seen. If you have a planned admission, it is reasonable to contact the ward or the hospital in advance, ask what their policy now is, and ask what single-occupancy options exist. If you can, ask for any decision about where you are placed to be explained and written down. The letter tells boards that decisions must be documented and proportionate, so you are entitled to ask for the reasoning.
If you are treated with hostility or harassed because you are trans, that is covered by the Equality Act, and the hospital's patient advice and liaison service is the place to start a complaint. If you work in the NHS, your employer has been told that nobody should be left without suitable facilities. Raise it with your manager or your trade union, and keep a record of what you ask for and what you are given.
The letter also tells boards to draw on lived experience. If you are trans and your trust is reviewing its policies, say so, because you are the expertise they are being asked to use. And if you want to talk through a hospital stay, a conversation with your manager or what you would want to say, you can do that with Sammy here.
If there is a topic that you would like me to cover, just let Sammy know.
Dr Helen Webberley
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