Free Speech Union General Secretary Toby Young wrote to the South Tyneside and Sunderland NHS Foundation Trust last month in relation to its new ‘Transitioning at Work and Gender Diversity Policy’. The policy came into effect a few weeks ago and, having reviewed it, we believe it must be withdrawn and substantially amended as it appears to discriminate against NHS employees with gender critical beliefs. (You can read Toby’s letter here.)
One of the fundamental problems with the policy is its definition of the term ‘transphobia’: “The fear or dislike of someone based on the fact they are Trans, including denying their gender identity or refusing to accept it. Transphobia may be targeted at people who are, or who are perceived to be, Trans.”
Trans employees and service users should, of course, be free from discrimination and harassment. But given that the Trust says it “does not accept transphobia in any form”, an employee “refusing to accept” a trans person’s “gender identity” – e.g., a Muslim or a gender critical feminist – will face being disciplined or worse. This effectively creates an intimidating, hostile, degrading, humiliating or offensive environment for any employees who believe that sex is binary and immutable – a protected belief, don’t forget – which is contrary to Section 26 of the Equality Act 2010.
We think this definition of ‘transphobia’ is too broad and the accompanying statement that the Trust does not accept it “in any form” is, as a result, too dogmatic. It is perfectly possible to refuse to accept that a trans person has changed their gender because, according to your belief, sex is binary and immutable, but nevertheless treat that colleague with dignity and respect. It is that standard which the NHS should uphold, and not insist that employees should “accept” something that runs contrary to their beliefs.
The Trust creates further problems for itself by giving examples of ‘transphobic’ behaviour, which it says it will not tolerate “in any form”:
- A trans-woman… referred to as ‘he’ despite having requested to use the pronoun ‘she’;
- Refusing to use the same facilities as a Trans or Non-Binary member of the team;
- Refusing to use the pronouns of the affirmed gender of a colleague.
Setting aside the fact that compelling employees to use the preferred pronouns of their trans or non-binary colleagues may be a breach of Article 10 of the European Convention on Human Rights, the Trust is effectively saying that a female member of staff not wishing to use the same toilets as a biological man is ‘transphobic’ and could face losing her job.
In his response to our letter, the Trust’s Chief Executive, Ken Bremner, MBE, recognises that “there is a need to protect and to balance the competing rights of colleagues with different beliefs” and that “as part of that balancing exercise and process of continual review”, the Trust “will review the policy and consider your comments and suggested amendments when making any decisions regarding the content.”
That’s encouraging, and we look forward to seeing how South Tyneside and Sunderland NHS Foundation Trust revise the policy. As per our letter, however, should it remain the same and any of the Trust’s employees find themselves being disciplined or worse because they fall foul of it, we stand ready to support them, including by helping them take the Trust to the Employment Tribunal.
