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Is the NHS doing enough to support trans people?

Employment and Discrimination solicitor Alice Ramsay asks whether the NHS is doing enough to support trans people. 

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Alice has been working at Leigh Day since 2009. She specialises in employment and discrimination law and has a particular interest in cases involving gender identity.

Caitlyn Jenner’s decision to appear on the front cover of Vanity Fair magazine has generated huge debate on gender identity, gender expression, and the issues affecting trans people living in the USA and beyond, including in the UK. 

Writing in The Guardian on 1 June 2015, the journalist Paris Lees referred to Caitlyn Jenner’s transition as ‘one which will do great things for trans awareness’.

Her article did, however, describe Caitlyn Jenner as ‘not your average trans person’ and highlighted disparities in relation to access to healthcare for trans people.

NHS gender identity services in England are commissioned by NHS England, which is currently in the process of reviewing services for people affected by gender dysphoria, described as: ‘discomfort or distress that is caused by a discrepancy between a person’s gender identity (how they see themselves with respect to gender) and that person’s sex assigned at birth (and the associated gender role, and/or primary and secondary sex characteristic).’

NHS England held a public consultation in March 2015 on the draft clinical commissioning policy and service specifications for NHS gender identity services in England.

The draft documents are inclusive in their view of gender, encompassing the binary gender roles of man and woman, as well as non-binary gender roles. 

The draft clinical commissioning policy describes itself as ‘a means of ensuring patients receive equitable access to treatments and interventions that allow an individual to feel comfortable with their gender role and to experience an improved quality of life’.

The draft service specifications emphasise the importance of a personalised package of care specific to the needs of each service user.  There are, however, some interventions that are not included within the scope of the service specifications, such as facial feminising and masculinising surgery.

Whether a trans person would wish to have such surgery is a personal matter for them.  For those that do, however, it appears that funding under the NHS is not currently an option.

According to the draft clinical commissioning policy, ‘Since 2013, NHS England has actively engaged with trans people, so as to better understand their healthcare needs and their experience of the NHS, good and bad.’ 

That comment should be seen in the context of the numerous concerns reported on Twitter in 2013 under the hashtag #TransDocFail, which highlighted the difficulties many trans people experienced whilst trying to access NHS healthcare services and included reports of discriminatory attitudes from clinicians, including GPs, long waiting lists, and inappropriate and potentially unlawful misuse of service users’ pronouns and names. 

More recently, Healthwatch has contacted NHS England in relation to concerns about unacceptable delays in relation to gender identity services.

NHS England doesn’t appear to have finalised the clinical commissioning policy and service specifications for NGS gender identity services yet but its decision to consult on the draft versions suggests it is trying to get things right. 

Those documents, once finalised, must have due regard to the need to eliminate discrimination, harassment, and victimisation of trans people. 

There is much work to be done within the NHS to promote awareness of the diversity of gender expression, to tackle unfavourable treatment of trans people, and to ensure that the NHS provides services to trans people in line its obligations under equality, human rights, and data protection legislation.

With increasing public awareness of gender identity issues, hopefully the way that NHS services are provided to trans people can only get better.

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