NHS faces calls for clarity as new single-sex guidance takes effect

NHS organisations are awaiting updated national guidance on same-sex hospital accommodation after new equality guidance came into force across Britain, leaving trusts responsible for navigating the changing legal and regulatory position while NHS-specific rules remain under review.

The Equality and Human Rights Commission’s updated Code of Practice for services, public functions and associations came into force on 5 August, following the Supreme Court’s landmark judgment last year concerning the meaning of sex under the Equality Act 2010.

The Supreme Court ruled in April 2025 that the terms “woman” and “sex” in the Equality Act refer to biological sex. The judgment also made clear that transgender people continue to have legal protection from discrimination under the protected characteristic of gender reassignment.

The EHRC subsequently revised its Code of Practice to provide organisations with guidance on how the Equality Act should be applied following the judgment. The Code covers services and public functions across England, Scotland and Wales and has implications for organisations providing single-sex facilities and services, including healthcare.

For the NHS, however, separate national guidance governing patient accommodation is still being revised. NHS England has been reviewing its existing Delivering Same-Sex Accommodation guidance, originally published in 2019, to ensure it reflects the Supreme Court judgment and the updated equality framework.

NHS England’s current guidance states that the document is under review following the Supreme Court ruling and that revised guidance supporting the privacy, dignity and safety of all patients in hospital accommodation will be published as soon as possible.

The revised NHS document is expected to be renamed Privacy, Dignity and Safety in Hospital Accommodation.

Until the new guidance is published, NHS providers continue to be expected to meet patients’ clinical needs, protect them from harm and maintain their privacy and dignity when they are admitted to hospital. Providers must also continue to measure and report breaches of the NHS Constitution commitment on same-sex accommodation.

Existing NHS guidance states that patients should not normally have to share sleeping accommodation with members of the opposite sex, although limited exceptions are permitted where clinically necessary, including in highly specialised settings such as critical care.

NHS England has previously said it wanted the EHRC’s updated Code of Practice to be available before final decisions were made about its own national policies. At an NHS England board meeting in March, Chief Nursing Officer Duncan Burton confirmed that patient accommodation guidance and staff facilities represented separate issues.

For patient accommodation, NHS England provides national guidance linked to the NHS Constitution. Policies relating to staff facilities, however, have historically been matters for individual NHS organisations to develop in accordance with relevant legislation.

The government has since confirmed that NHS England is also developing guidance for NHS trusts and integrated care boards on the provision and use of physical staff facilities. In a parliamentary answer published in June, the Department of Health and Social Care said this would advise NHS employers on the approach required to ensure written policies are up to date and legally compliant.

The delay between the wider equality guidance taking effect and publication of the revised NHS documents has created pressure for greater clarity about how the legal position should translate into everyday healthcare settings.

Hospitals face particularly complex considerations because decisions about accommodation can involve privacy, dignity, safeguarding, clinical requirements and the needs of individual patients simultaneously.

The issue also remains politically and socially contentious. Supporters of stronger single-sex provisions argue that clear rules are necessary to protect privacy, dignity and sex-based rights, particularly for women in vulnerable healthcare settings. Transgender rights organisations and campaigners have meanwhile raised concerns about how changes to single-sex policies could affect the dignity, safety and access to services of transgender people.

For NHS organisations, the immediate challenge is translating the legal and regulatory framework into policies that protect patients and staff while complying with equality law.

The EHRC’s new Code is now in force, but NHS England’s revised national guidance on hospital accommodation has yet to be published. Until it is, healthcare organisations will continue to operate in a period of transition while awaiting detailed NHS-specific instructions on how the new framework should work in practice.

Stay informed with the stories shaping health and social care.