In the evolving landscape of rights, it is essential to navigate the challenging terrains of inclusion, gender, and healthcare. A recent article in The Telegraph highlighted the concerns of a patient named Teresa Steele, who requested care exclusively from medics sharing her biological sex. While her experience highlights the importance of patient centred care, it also raises an essential question: should patients be allowed to make demands based on the gender of their healthcare provider?
Equity and Non-Discrimination in Healthcare
At the heart of the National Health Service’s (NHS) Constitution is the principle of valuing every person – patient, family, carer, and staff member. This ethos, coupled with the Equality Act 2010 which states in s.7:
“(1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”
clearly indicates that discrimination, be it on grounds of race, religion, gender, or any other protected characteristic, is inconsistent with the values underpinning the UK’s healthcare framework. Just as one is not entitled to choose the race of their healthcare provider, should one be entitled to select based on biological sex?
The Health Tissue Authority (HTA) echoes this sentiment. In its 2020 directive on organ transplantation, it states that:
“No organ should be transplanted under a form of consent which seeks to impose restrictions on the class of recipient of the organ, including any restriction based on a recipient’s gender, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status (including characteristics protected under the Equality Act 2010). This position reflects Article 14 of the European Convention on Human Rights”
The underlying message is clear: healthcare, at its core, should be free from biases and prejudices.
Potential Dangers of Patient-led Demands
Allowing patients to demand treatment from doctors of a particular biological sex opens a Pandora’s box of implications. For one, it’s often the case that the best-suited medical professional for a particular treatment or procedure is of a certain gender or background. What then? Does the request override the need for expert medical care? Or do we just accept that patients request and knowingly give them care less than what could be offered?
Consider an emergency scenario where a transgender surgeon is the most qualified to conduct life-saving surgery. Would the patient’s request jeopardise the patient’s health, or would the urgency of the situation override it? Furthermore, what does “involved in care” encompass? Should a transgender expert refrain from giving their medical opinion merely because of their gender identity? The implications of such a demand are far-reaching and could jeopardise not just the health of the patient but also the foundation of trust upon which healthcare is built – Notably, such blanket refusals or requests might, and likely would, have serious consequences that the patient never could have envisaged when making the request or refusal.
On this line, Roger Kline, the former Director of the NHS Workforce Race Equality Standard, stated in the BMJ that in relation to a patient demanding a white doctor that:
“there might be urgent situations where clinicians agree that a refusal to provide choice risks serious harm. The default response should again be to refuse such a request. Any decision to provide emergency treatment should not include any further treatment where a racist request continues […] The default position should be that patients do not choose the ethnicity of their clinician and employers should make that crystal clear. Anything else is a very slippery slope.”
Why then, should there be any difference with respect to gender identity and sex reassignment?
Notably, the situation involving Teresa Steele at the Princess Grace occurred in a private hospital—a domain where the dynamics of service provision differ considerably from public health institutions. In the realm of private healthcare, patients like Ms. Steele aren’t just recipients of care but also consumers. By electing for a specific hospital and procedure, they exercise a degree of agency analogous to a customer choosing a particular brand or service in the market.
This consumer-centric lens adds a layer of complexity to the narrative. Just as any consumer possesses the right to make or refrain from making a purchase based on personal preferences or beliefs, businesses—in this case, private hospitals—retain the right to make decisions about service provision. This reciprocity in choice ensures that both parties, the service provider and the consumer, maintain autonomy in their interactions. While Ms. Steele’s desire for care aligning with her preferences is understandable from a consumer’s standpoint, the hospital’s decision to retract a particular service mirrors the rights businesses hold in accepting or refusing clients. It’s a delicate balance, one where both parties’ rights must be weighed and respected within the broader spectrum of consumer law and healthcare ethics.
Autonomy and the Ethics of Care
Patient autonomy is one of the cornerstones of medical ethics. Every individual has the right to make decisions about their care and treatment. However, this autonomy must be juxtaposed with principles of justice, beneficence, and non-maleficence. By refusing care based on a healthcare provider’s gender, we risk overshadowing these principles. Moreover, in situations where patients feel uncomfortable, the healthcare system should strive for understanding and accommodate when possible, but not at the expense of creating a discriminatory environment.
The NHS Confederation LGVTQ+ Leaders Network has noted that:
“If a patient complains about being treated or cared for by a person who they perceive to be trans, this must be handled sensitively. It would likely be discriminatory for the patient to refuse to be treated or cared for by a trans person, unless clear and evidenced clinical harm may result to the patient.”
The demand that a patient can refuse treatment from a transgender healthcare professional carry with it an inherent paradox. If we were to enshrine into law the ability for patients to make such refusals based on a doctor’s gender identity, it opens a precarious door to counter-refusals based on similar or other grounds. Ethically and legally, this would be analogous to a transgender doctor declining to treat a cisgender patient, a gay doctor refraining from attending to a straight patient, or a white doctor turning away a person of colour. Such distinctions not only undermine the principles of unbiased care and professionalism but also emphasise an unsettling reality: laws meant to ensure equality and fair treatment can, if misdirected, perpetuate discrimination and division. To champion such specific refusals is to inadvertently endorse a framework where healthcare can be rendered selectively, a scenario far removed from the very essence of care and the oath to do no harm. Indeed, in the pursuit of equality, it is imperative to recognise that rights and responsibilities are intrinsically mutual and must be upheld in all directions.
Looking Ahead: An Inclusive Approach
Individuals undeniably deserve the right to freedom of belief and expression, a tenet enshrined in Article 10 of the European Convention on Human Rights. Such liberties ensure a thriving democracy, fostering an environment where diverse voices, opinions, and beliefs coexist. However, it’s imperative for individuals to understand that with such rights come inherent responsibilities. While one is free to express their views, this freedom isn’t an impenetrable shield against consequences that arise from those expressions, especially if they impinge on the rights of others. Rights do not exist in isolation; they are always counterbalanced by other rights and societal interests. Thus, while our societies rightly champion freedom of expression, individuals must exercise this right with a consciousness of its limits and the potential repercussions of their utterances.
While it’s important to recognise and validate the concerns and feelings of all patients, it’s equally crucial to ensure that our healthcare environment remains inclusive and non-discriminatory. Embracing diversity and equity in care is not just about upholding legal standards; it’s about upholding our shared humanity. As we move forward, it’s essential to strike a balance that respects patient autonomy but does not compromise the integrity and inclusivity of our healthcare system.
Avaia Williams – Founder
This blog was published on 8 August 2023
Nightingale Rights Initiative 