Patient safety implications of the Supreme Court ruling on biological sex: A blog from Laura Evans

Summary

In this blog, Laura Evans discusses the impact the recent UK Supreme Court judgment on the meaning of ‘sex’ in the Equality Act 2010 may have on access to health and care services for transgender people.

Content

Last month, the UK Supreme Court ruled in the For Women Scotland v Scottish Ministers case that the protected characteristic of ‘sex’ under the Equality Act 2010 relates to biological sex. This judgment, followed recently by an update from the Equality and Human Rights Commission on its practical implications, will impact many different organisations in the UK.[2] This includes healthcare providers, where the judgment comes with numerous potential patient safety risks for transgender people.

Transgender people already encounter various barriers to accessing health and care, including long waits to access NHS gender dysphoria services, lack of training in transgender health, and discrimination.[3] [4] [5] [6] [7] There are also emerging concerns, now the subject of research, on how the algorithms used to assess disease risk and to help make decisions on treatment fail to take transgender patients into account, reinforcing health inequalities.[8]

There are very practical and, somewhat ironically, biological issues to consider when looking at the potential impact of this ruling. Transgender people who have not undergone full gender reassignment surgery will still have sex organs and genitalia of the sex they were assigned at birth. In the case of trans men, this may mean they continue to require gynaecological and reproductive healthcare despite identifying and presenting as male.[9] Trans men can develop gynaecological cancers or medical conditions and trans women can develop testicular or other cancers.[10] Even where transgender people have undergone surgery, the clitoris and prostate are generally retained therefore trans men could develop vaginal or vulval cancers and trans women could develop prostate cancer.[11]

Preventing discrimination

Under the Equality Act 2010, people with the protected characteristic ‘gender reassignment’ are protected from discrimination, harassment and victimisation on the grounds of this characteristic when accessing services and public functions, such as medical services, buildings and premises, including onsite facilities like toilets and changing rooms.

Public sector providers like the NHS are additionally under the Public Sector Equality Duty to:

• Eliminate discrimination, harassment and victimisation.
• Advance equality of opportunity between people with the protected characteristic of gender reassignment and those who do not.
• Foster good relations between groups who share a protected characteristic and those who do not.

It is difficult to see how public sector providers will be able to meet the Public Sector Equality Duty if they refuse transgender people access to services in the gender with which they identify.

There are also implications under data protection legislation. Under the UK General Data Protection Regulations (UKGDPR) 2018, health, genetic and biological data, where it is used for identification purposes, are all 'special category' data forms subject to enhanced protections.

Access to services

In light of the judgment, NHS England has stated that it is now reviewing its guidance on same sex accommodation because previous guidance advised that transgender patients should be accommodated according to their gender identity.[12]

We know the health service remains heavily under pressure and is often at its capacity limits, as highlighted by the ongoing normalisation of arrangements such as corridor care in hospitals across the country.[13] [14] The practical impact of potentially having to provide entirely separate facilities for transgender patients to ensure they can access specific services is hard to judge at this stage. However, it would seem highly likely that this may have unintended consequences of delaying access to care and treatment for these patients, resulting in avoidable harm.

Conclusion

Overall, the climate of misunderstanding, exclusion and fear that has followed the judgment is likely to leave intersex, transgender and non-binary people afraid to access health services altogether. This would lead to worsening health outcomes as illness may be diagnosed too late. Fear and shame, and the inability to live freely as yourself, are all known triggers for mental ill health and suicidal thoughts, leading to increased need across mental health services that are already stretched with long waiting lists. 

References

1. For Women Ltd v The Scottish Ministers, UKSC 16 [2025] (On appeal from CSIH 37 [2023]), 16 April 2025.
2. Equality and Human Rights Commission. An interim update on the practical implications of the UK Supreme Court Judgement, 25 April 2025.
3. Mikulak M, Ryan S, Ma R, et al, Health professionals’ identified barriers to trans health care: a qualitative interview study, Br J Gen Pract 2021; 71 (713): e941-e947. DOI: https://doi.org/10.3399/BJGP.2021.01792021.
4. Safer JD, Coleman E, Feldman J et al. Barriers to Health Care for Transgender Individuals. Curr Opin Endocrinol Diabetes Obes 2016; 1; 23(2):168-71.
5. Murry R. Acting on the evidence; ensuring the NHS meets the needs of trans people. The King's Fund 26 September 2022.
6. London Assembly. Trans health matters: improving access to healthcare for trans and gender-diverse Londoners, February 2022.
7. BBC News. Life on a NHS transgender waiting list, 20 March 2024.
8. The Guardian. NHS treatment algorithms ‘not taking transgender patients into account’, 5 May 2023.
9. Sbragia JD, Vottero B. Experiences of transgender men in seeking gynaecological and reproductive health care: a qualitative systematic review. JBI Evidence Synthesis. 18(9):p 1870-1931, September 2020. 
10. de Nie I, Wiepjes CM. de Blok CJM, et al, Incidence of testicular cancer in trans women using gender-affirming hormonal treatment: a nationwide cohort study. BJU International, 2021. https://doi.org/10.1111/bju.15575
11. Bertoncelli Tanaka M, Sahota K, Burn J, et al, Prostate cancer in transgender women: what does a urologist need to know? BJU International 2022; 129: 113-22.
12. BBC News. NHS will be pursued if gender policies don’t change, equalities watchdog says, 17 April 2025.
13. Royal College of Nursing. On the frontline of the UK’s corridor care crisis, 16 January 2025.
14. Patient Safety Learning. Response to RCN report: on the frontline of the UK’s corridor care crisis, 17 January 2025.

About the Author

Laura is the CEO of people and culture consultancy Glass Ceilings Change Management. She is a consultant, leader, and public speaker with almost two decades' experience in Operations, Policy, Regulatory Compliance, and HR across the private, public, and charity sectors. Her career to date has focussed on helping to remove barriers people face in society – in employment and education – by supporting organisations to shape inclusive cultures.  In her early career, Laura worked on developing and implementing equalities and hate crime legislation, for which she was nominated in both the Home Office Awards and Civil Service Awards. In 2010 she was presented an award for her allyship and work supporting the transgender community and tackling transphobia.

Laura is an Employment Advisor on the Advisory Board of Long Covid Support. She also sits as an expert panel member for responsible business on the Liverpool Chamber of Commerce and the Institute of Directors’ Expert Advisory Group on Equality, Diversity and Inclusion.

Laura has a Masters degree in HR Management with CIPD Advanced Level Standards, and holds postgraduate qualifications in HR Directorship and OD&D. She is an Associate Member of the Employment Lawyers Association, a Chartered Fellow with both the CIPD and the Chartered Management Institute, and a Fellow of the Institute of Leadership in the UK. She is also a Fellow with both the Australian HR Institute and the Institute of Managers and Leaders Australia and New Zealand.