NHS England publishes guidance on single sex facilities for patients and staff

Patient accommodation

NHS England's new guidance on same-sex accommodation in hospital - Privacy, dignity, and safety in hospital accommodation - replaces its previous guidance ('Delivering same-sex accommodation', 2019) and applies to all providers of NHS-funded care.

General Principles

Much of the guidance is about the general principles around provision of same-sex accommodation in hospital, including an emphasis on protecting the privacy, dignity, and safety of all patients whilst prioritising clinical need. It also includes information about reporting same-sex accommodation breaches and outlines what constitutes a breach - i.e. where one or more of the following principles is not met:

• Women should not have to share sleeping accommodation with men. Men should not have to share sleeping accommodation with women.
• Women should not have to share toilet or bathroom facilities with men. Men should not have to share toilet or bathroom facilities with women.
• Women should not have to walk through an area occupied by men to reach toilets or bathrooms, excluding corridors. Men should not have to walk through an area occupied by women to reach toilets or bathrooms, excluding corridors.
• Women-only day rooms should be provided in mental health inpatient units.

In accordance with the FWS case and the EHRC's revised Services Code of Practice, decisions on hospital accommodation for trans people and others with the protected characteristic of gender reassignment should be based on biological sex, rather than gender identity.

Importantly, however, the guidance caveats this by emphasising that such decisions also need to ensure that clinical needs are met and that privacy, dignity, and safety are maintained for all.

Impact of clinical need

In practice this means that, where it would not be clinically appropriate to deliver care to a trans patient on a ward or bay that aligns with their biological sex, providers should identify alternative arrangements such as a single room, subject to the specific circumstances of each case and taking into account wider clinical requirements for such accommodation.

If, however, alternative arrangements are not possible, clinical needs take priority over same-sex accommodation requirements, which may mean placing someone other than in accordance with biological sex. The guidance envisages such circumstances to be rare and emphasises that staff should take extra care in this situation to protect the privacy, dignity and safety of all patients. The guidance also makes clear that the reasons for such a decision should be clearly recorded and reported as a same-sex accommodation breach.

NHS staff facilities

The Guidance on NHS staff facilities makes it clear that the availability of suitable and sufficient facilities is essential to ensure the privacy, dignity, and safety of all staff at work. It recommends that, pending revision of the EHRC's Employment Code of Practice, NHS organisations should apply the principles set out in the updated Services Code of Practice to workplace facilities. This requires NHS organisations to review and update their policies relating to staff toilets and changing facilities to ensure they are legally compliant.

Audit of current facilities

The guidance recommends that organisations that have not already done so should conduct an audit of their current workplace facilities. The audit should be used to inform local policies, identify any necessary changes to existing facilities, and support planning for any required capital investment.

Single and mixed-sex facilities

Organisations whose existing facilities are predominantly single-sex are advised to consider whether suitable alternative facilities with individual lockable rooms can be provided to allow all staff to access facilities in a way that respects their privacy and dignity and supports inclusion.

The guidance notes that facilities that are designated as single-sex but provided on a trans-inclusive basis would now legally be considered mixed-sex, and recommends that organisations whose existing facilities are predominantly mixed-sex check that they are still providing sufficient facilities in accordance with the Workplace (Health, Safety and Welfare) Regulations 1992 (the 1992 Regulations). By way of reminder, the 1992 Regulations require employers to provide a sufficient number of workplace toilet (and, where relevant, washing and changing) facilities, on a single-sex basis or in individual lockable rooms for use by one person at a time.

Organisations are expected to ensure that no staff members are left without access to suitable and dignified facilities, and that a sufficient number of facilities are fully accessible, including for disabled staff. They are advised to balance the rights of all staff groups in a proportionate way, and provide clear and appropriate signage for all facilities.

Equality Impact Assessments

Equality Impact Assessments are recommended as a means of supporting compliance with the Public Sector Equality Duty. The guidance advises organisations to define the legitimate aim of any changes they make. As well as legal compliance, improving staff experience and the accessibility of facilities are suggested as possible legitimate aims.

Resourcing considerations

All policies should aim to sensitively respect and proportionately balance the needs of all staff. The guidance flags that this may require additional resources, including time, capital costs, or specialist expertise, and that organisations should consider how any necessary improvements can be prioritised within existing budgets.

Considerations for board members

The guidance advises boards to satisfy themselves that:

• The organisation's approach to facilities provision promotes a culture of dignity, respect, safety, and inclusion for all staff
• Policies are compliant with all applicable legal obligations and subject to appropriate legal, financial, and governance oversight
• Policy decisions are lawful, proportionate, objectively justified, documented, and can be explained and defended
• Rights of different staff groups are proportionately balanced, and reasonable steps taken to mitigate adverse impacts and ensure access to dignified facilities for all
• The impacts of any changes are monitored and adjustments are made if necessary
• Equality Impact Assessments are informed by engagement with staff, including staff networks and trade unions, with feedback being used to support continuous improvement

Keeping policies under review

Policies and procedures must be reviewed on a regular basis, at a minimum within one year of publication and as required in response to any further guidance issued by the EHRC.

What does this mean for NHS organisations?

All NHS organisations will need to review and potentially update their policies on patient accommodation and staff facilities in light of the new guidance.

It will be for individual trusts to assess their approaches based on clinical need, the estate they have, and this guidance.

NHS organisations should seek advice on how best to adapt their policies and facilities in light of their own particular circumstances.