MYTH: women can be forced to undergo intimate medical treatment by trans women

The simple answer is no.
This appears to be a basic misunderstanding of how Equality law works, combined with a certain mischievousness on the part of some media.
Background

In 2016, a woman arrived at her hospital for a routine smear test. She had asked that the test be performed by a woman and was unhappy that the person allocated to carry out the procedure was a trans woman.

The woman objected both to the individual appointed to carry out the test and to the fact that when she complained, initially, the response of the hospital and colleagues of the trans woman appeared to regard her as being the problem. Speaking about the experience later, she said: “People who are not comfortable about this are presented as bigots and this is kind of how I was made to feel about it.”
The hospital later apologised for the way the woman had been treated, and this case was reported in the Times in December 2017 under the heading “The female NHS nurse I asked for came with stubble” 1.

Since then, anti-trans campaigners on social media have suggested that this case, and similar, mean that women cannot refuse to be treated by a trans woman.

Legal Situation

Reporting and dissemination of this case appears to confuse two separate issues:

  • the rights of the patient
  • the employment rights of the nurse

Patients are allowed to refuse treatment if they do not wish to be treated for any reason. This follows ethical guidance2 on the subject: “[the doctor/nurse] must respect a competent patient’s decision to refuse an investigation or treatment, even if you think their decision is wrong or irrational”.

Continuing to examine a patient when consent has not been given or has been withdrawn would be an assault, and could be prosecuted as such.

In the past, this has resulted in individuals from specific religious backgrounds refusing to be treated unless by  a person of similar ethnic or religious background, as well as women refusing treatment by men. Refusing to be treated by a trans woman is, in principle, no different from this.

However, if a patient does refuse treatment by an individual on the grounds that they object to any given protected characteristic, this may be treated as a decision on their part to withdraw from care. This happens regularly in respect of race and is cited in warning letters issued to patients.
This is because under the Equality Act 2010, individuals are entitled to be employed without discrimination based on key protected characteristics, which include being transgender.

There are a number of very specific exceptions to this. A woman may, for instance, express a preference that an intimate exam is carried out by another woman. In general, however, it would be discrimination if a hospital refused to employ a trans man or woman as a nurse or clinician because they were trans. If they are capable of doing the job, then they are entitled to be employed to do so.

Further guidance on this matter is given by the Royal College of Nursing 3.

Common sense

The bottom line here is that common sense should prevail. No individual can or will be forced to be treated by a person if they do not wish to be, and they have an absolute right to say no.

However, if they go beyond a simple no, beyond objecting to a specific individual, and start to make explicit that they are refusing treatment BECAUSE a person is black, gay, trans, etc. then this creates an issue for all concerned. In addition to respecting that person’s rights, the employing body must also now have concern for the impact on their member of staff.

The patient might then find themselves removed from waiting lists and/or being treated as of lower priority for non-urgent care. The key point here is that this would be consequence not simply of them wishing to reject a particular health worker, but of their insistence on making it clear that they were doing so for the reason that they objected to that individual on the grounds of their having a particular protected characteristic.

After-thought

While this provides an explanation of the legalities involved and therefore what ought to have happened, reading between the lines suggests that the incident escalated to a degree it did not need to. As the hospital confirmed, the allocation of the trans individual to treat the patient was a mistake, and they did not handle the subsequent conversation well or with sensitivity.

As the patient points out, they were presented as a bigot.

At the same time, it is not hard to understand how the language used in the complaint – that the nurse was a man and a focus on the observation that they had stubble – may give the impression that the patient was less than supportive towards trans people. This, in turn, may have contributed to why this case became subject of formal complaint rather than being resolved amicably on the day.

Takeaway

If you do not wish to be treated by an individual then, in ordinary circumstances (as in: your life is not at immediate risk), then you are permitted to say so and your wishes will be respected.

1 – “The female NHS nurse I asked for came with stubble”, The Times, 31 December 2017

2 – Combined reference: Airedale NHS Trust v Bland [1993] 1 All ER 821; Re JT (Adult: Refusal of Medical Treatment) [1998] 1 FLR 48 and Re AK (Medical Treatment: Consent) [2001] FLR 129.

3 – Guidance on Refusal to Treat, Royal College of Nursing (updated regularly)