A code of practice does not usually make front-page news, yet the one laid before Parliament by the Equality and Human Rights Commission last week has done exactly that, and for a reason that goes well beyond the wording of a regulatory document. It has exposed, in unusually stark terms, the gap between what the law now requires of the NHS and what NHS wards actually do.
The chain of events runs back to April, when the Supreme Court ruled that the definition of sex in the Equality Act 2010 refers to biological sex rather than acquired gender, even where a person holds a gender recognition certificate. The EHRC's chair at the time, Kishwer Falkner, told the health service plainly that it would have to change its guidance and that the regulator would pursue enforcement if it did not. Months later, with the statutory code now in force in England, Scotland and Wales, NHS accommodation policy remains the one issued in 2021, under which ward placement follows how a patient dresses, presents and wishes to be addressed rather than their biological sex.
NHS England's position, confirmed by officials, is that the code is being reviewed with a view to publishing draft guidance for the service "shortly". No timeframe accompanies that commitment, and reporting this week suggests NHS leadership and the Cabinet Office have each pointed to the other over responsibility for the delay. That kind of institutional ambiguity might be tolerable on a matter of minor administrative housekeeping. On a question that touches patient safety, dignity and workforce liability, it is harder to defend.
The practical consequences are already visible. Two nurses in Darlington won an employment tribunal case after objecting to sharing changing facilities with a trans colleague, a dispute that predates the new code but illustrates precisely the kind of legal exposure trusts now face if local practice continues to diverge from statutory guidance. Their union has since written to the health secretary asking for clarity on enforcement, monitoring and protection for staff who raise concerns, and for assurance that the code's logic will extend into NHS employment settings as well as patient services. Yvette Cooper has signalled in broad terms that the legal position is now settled, but a signal from a secretary of state is not the same as an operational instruction that a ward sister can act on.
This is where the story becomes one about state capacity rather than culture war positioning. NHS trusts are large, devolved organisations operating under standing national guidance that carries real legal weight when it is wrong. Asking hundreds of individual trusts to interpret a Supreme Court judgment and a regulator's code without a central operational framework invites inconsistency, and inconsistency in a matter litigated as recently and as publicly as this one is an invitation to further tribunal claims. The EHRC has already indicated it is prepared to pursue the NHS directly if guidance is not updated, which raises the prospect of formal regulatory action against the health service sitting alongside individual employment claims from staff and patients.
There is also a quieter cost. Ward managers are currently expected to apply a policy that health department lawyers privately concede no longer reflects the law, while awaiting instructions that have no fixed publication date. That is an unusual position to leave frontline clinical staff in, and it will not resolve itself through further statements of principle from ministers or regulators. What the NHS needs now is not another confirmation that the law has changed but a dated commitment to publish the operational guidance that tells staff what to do differently, and a plan for the facilities and staffing changes that compliance may require. Until that arrives, the gap between statute and practice on the ward floor will remain exactly where it is today.
