Doctors' union votes for ‘identity-based care' despite warning over lawfulness
But the British Medical Association (BMA) has been warned the move risks going against the law, after the Supreme Court ruling in April that the terms woman and sex in the 2010 Equality Act 'refer to a biological woman and biological sex'.
At the BMA's annual representative meeting in Liverpool on Wednesday, a majority of members voted in favour of a motion said to centre on 'respect, safety and dignity' of LGBTQ+ doctors and patients.
In a speech in support of the motion, member Bethan Stanley described a 'blatant transphobia' in the current political climate, and insisted 'gender-affirming care is healthcare'.
Urging her fellow members to vote yes, she said: 'I feel it is a no-brainer that we should support care that is going to improve the welfare and wellbeing of our patients.'
To lengthy applause, she added: 'Trans women are women. Trans men are men.'
The motion called on the BMA to 'affirm the right of all LGBTQ+ patients and staff to identity-based care and working conditions – defined as care and policies that actively account for the individual's lived, intersecting identities (including sexuality, gender, neurodivergence, race, and cultural background)' and for guidance and a 'lobbying strategy to embed this principle into NHS equality standards, training frameworks, and institutional policies'.
Speaking against it, Louise Irvine said while it had a 'laudable aim of protecting LGBTQ+ and other people's rights to fair treatment' it also 'risks advocating that the BMA and other organisations adopt policies which are unlawful'.
She noted two cases of nurses suing their health trusts for providing changing rooms based on gender identity rather than sex and urged the BMA to study the legal implications of the recent Supreme Court judgment.
A group of nurses are challenging County Durham and Darlington NHS Foundation Trust over a policy allowing a trans colleague to use the female changing rooms at work, with their case due to be heard at an employment tribunal in the autumn.
Meanwhile, in Scotland, nurse Sandie Peggie is suing NHS Fife after sharing a female changing room with a transgender doctor, with that tribunal expected to resume in July.
Ms Irvine said: 'Lobbying for organisations to provide services on the basis of gender identity and not sex, means advocating that organisations disregard their public sector equality duty obligations.
'This could lead to legal liability for any discrimination or harassment experienced by service users expecting a single sex service.'
She added that the BMA lobbying for organisations to adopt policies for patients and staff based on gender identity instead of sex 'could put us at variance with the law, with all the risks that that carries'.
The vote reflected the 'deep passion within the profession for delivering truly personalised care', BMA representative body chair Dr Latifa Patel said.
She said the court ruling 'does not prevent healthcare that takes gender identity into account' and said the union will 'call for clear, national guidance and a real lobbying strategy that enable doctors to deliver identity-informed care, so that no one is left behind'.
The doctors' union has previously called for a delay to implementation of the Cass Review into children's gender services – which concluded gender care was an area of 'remarkably weak evidence' and young people had been caught up in a 'stormy social discourse'.
NSH England (NHSE) last year rejected the call for a delay, saying it has 'full confidence' in the Cass Review final report.
The BMA said it would carry out its own 'critique' of the report, which is yet to be published.
While initially stating this would be shared with its UK council at its January meeting, a BMA spokesperson said: 'We want to be as sure as we can be that data collection and analysis processes are as rigorous and robust as possible; this requires time, rather than be rushed.'
A Department of Health and Social Care spokesperson said: 'We are committed to providing safe, inclusive and appropriate care for all patients, including those questioning their gender.
'We expect NHS organisations to follow employment law and good HR practices, ensuring all staff feel respected and included.'
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