NHS told: Offer transgender patients fertility treatments or face legal action

A governmental body has threatened NHS England with legal action if does not start giving transgender people equal access to fertility treatments.

The Equality and Human Rights Commission (EHRC), a non-departmental watchdog, said “outdated” discrimination meant many trans patients were not offered the chance to have their eggs or sperm stored despite the fact that transitioning can cause fertility loss.

Trans patients already face immense difficulties in seeking medical help, with a PinkNews exclusive discovering last year that some are forced to wait nearly three years for an appointment with the NHS.

An NHS Nurse

NHS England has said it’s not its decision to make (Christopher Furlong/Getty Images)

But a top gender doctor told PinkNews earlier this year that claims there was “not sufficient capacity” in the NHS to deal with the number of people questioning their gender identity were besides the point, and that the healthcare system simply had to re-adjust for the growing numbers.

On Friday, the EHRC sent a pre-action letter to NHS England, according to the BBC, which it said could lead to a judicial review if steps were not taken to offer fertility treatments to patients with gender dysphoria.

EHRC chief executive Rebecca Hilsenrath explained: “Our laws and our values protect those who seek treatment for gender dysphoria.

(Flickr/Phalinn Ooi)

The EHRC has said it will begin a judicial review if it doesn’t receive an adequate response (Flickr/Phalinn Ooi)

“This means that where appropriate, treatment should be made available in order to ensure that access to health services is free of discrimination.

“A choice between treatment for gender dysphoria and the chance to start a family is not a real choice,” she added.

“We have asked NHS England to reflect on the true breadth of their statutory mandate and the impact on the transgender community of these outdated policies.”

NHS England has responded by saying that the watchdog had “misplaced their fire” and should instead be targeting government ministers to change the policy.

A doctor giving the uncomfortable news (stevanovicigor)

“Treatment should be made available in order to ensure that access to health services is free of discrimination” (stevanovicigor)

A spokesperson said: “Decisions on which services are commissioned by NHS England are taken by ministers based on advice from an independently chaired panel of health experts and patient representatives, using a process set out in primary legislation.”

NHS England has 14 days to respond to the watchdog’s letter. An EHRC spokeswoman said that “their response will determine whether or not further action is necessary.”

When asked for comment, the Department of Health referred PinkNews to NHS England’s statement.

NHS England has 14 days to respond to the watchdog’s letter (Pexels)

The EHRC’s stance has received support from LGBT rights groups, with Stonewall’s director of campaigns Paul Twocock telling The Guardian: “We welcome this challenge from the EHRC.

“It’s vital that trans people have fair and equal access to fertility treatment, and for many that should include the option of storing of eggs or sperm before medical transition.”

Lui Asquith of Mermaids, a charity which supports trans children and their families, praised the “really exciting action” on Twitter.

In a statement, they added: “Currently, the NHS offers little signposting and assistance to [those] wishing to preserve their fertility prior to necessary gender-affirming treatment, despite it being a well-documented, funded option offered to patients about to undertake other life-enhancing treatments that may impact fertility.

EDINBURGH, SCOTLAND - NOVEMBER 20:  Campaigners from the Stonewall Equality Network hold a rally outside the Scottish Parliament on November 20, 2013 in Edinburgh, Scotland. Members of the Scottish Parliament will vote later today on the Marriage and Civil Partnership Bill, debating on general principles of controversial Scottish Government proposals to allow gay couples to wed.  (Photo by Jeff J Mitchell/Getty Images)

Mermaids and Stonewall have both come out in support of the letter (Jeff J Mitchell/Getty)

“Many young transgender people and their families continue to be faced with the difficult and unique decision to delay often life-saving, gender-affirming treatment while they negotiate fertility preservation via the NHS or privately, or proceed in the knowledge that they may never have a biological family of their own.

“Mermaids stands with EHRC in asking for this disparity in approach to be rectified by the NHS to ensure that everyone, whatever their gender identity, can access healthcare without discrimination.”

Prince Harry called Mermaids “amazing” during a Buckingham Palace reception last year.