The move comes a week after proposed changes to the NHS Constitution for England, which would reinforce the NHS’s commitment to providing single-sex wards – including setting out that placing transgender patients in single-room accommodation is permissible under the Equality Act 2010 when appropriate, such as in respecting a patient’s wish to be in a single-sex ward. This consultation also proposes giving patients the right to request that intimate care is carried out by someone of the same biological sex, when reasonably possible.

The separate legislation on providing single-sex toilet facilities follows the results of a respective consultation on the proposals, where responses showed 81 per cent agreed with the intention for separate single-sex toilet facilities, and 82 per cent agreed with the intention to provide universal toilets where space allows, which comprise a fully enclosed toilet room with a washbasin and hand-drying facilities for individual use.

According to the Government, responses highlighted particular concerns from women, elderly and the disabled who felt unfairly disadvantaged, as publicly accessible toilets are increasingly being converted into gender-neutral facilities, where users share cubicle and hand-washing facilities. This leads to increasing waiting in shared queues, decreased choice, and, for some, a sense of less privacy and dignity.

Hygiene research

Following recent infection control and sanitary hygiene research carried out at three hospitals in NHS Lanarkshire, a consultant microbiologist concluded that single-sex and disabled toilets should be retained, with additional facilities labelled unisex and available for anyone. She argued that single-sex toilets should not be abandoned in favour of unisex toilets, “since these [unisex] toilets had the highest microbial burden overall”, according to her and colleagues’ research findings.

The new requirements will mean everyone can access appropriate facilities either through a separate single-sex space or a self-contained, universal toilet.  

Changes to building regulations will mean that new non-domestic buildings will be required to provide separate single-sex toilets for women and men. Self-contained, universal toilets may be provided in addition, where space allows, or instead of single-sex toilets where there isn’t enough space. In addition to single-sex toilets becoming the default for new non-domestic buildings and places undertaking major refurbishment, the policy encourages provision of self-contained universal toilets.

Minister for Women and Equalities Kemi Badenoch said: “These regulations will guide organisations to design unisex and single-sex toilets, ending the rise of so-called ‘gender-neutral’ mixed sex toilet spaces, which deny privacy and dignity to both men and women.”

She added that the changes would create better provision for women so that their particular biological, health and sanitary needs are met.

Changes to building regulations will ensure that:  

• separate single-sex toilets facilities are provided for men and women;
• self-contained, universal toilets may be provided in addition to single-sex toilets, where space allows; and
• self-contained universal toilets may be provided instead of single-sex toilets only where lack of space reasonably precludes provision of single-sex toilet accommodation.

The new requirement will apply to new non-domestic buildings, or buildings that undergo a material change of use, with some exceptions, including, among others, residential rooms in care homes.

Consultation on the Constitution

Launched last week, the consultation on the NHS Constitution will run for eight weeks. Health and Social Care Secretary Victoria Atkins said: “We want to make it abundantly clear that if a patient wants same-sex care they should have access to it wherever reasonably possible. We’ve always been clear that sex matters and our services should respect that.

“By putting this in the NHS Constitution we’re highlighting the importance of balancing the rights and needs of all patients to make a healthcare system that is faster, simpler and fairer for all.”

Minister for Women’s Health Strategy Maria Caulfield said: “This is about putting patients first, giving them the dignity and respect that they deserve when they’re at their most vulnerable. Our plans include accommodating requests for same-sex intimate care and respecting single-sex wards.”

Some trans and LGBTQ+ charities and organisations have raised concerns about the proposals. A joint statement, signed by or on behalf of organisations including Mermaids, Gendered Intelligence, GIRES, LGBT+ Consortium, LGBT Foundation, and others, says: “Everyone deserves timely access to holistic, high-quality healthcare and to be treated with dignity, privacy and respect throughout their treatment and care. This includes trans, non-binary and intersex people who already face significant barriers and inequality when accessing NHS care.”

It adds: “We’re looking carefully at the proposed changes and working with experts to understand their legal and practical impacts on trans, non-binary and intersex people, and will share more with our communities in the coming weeks.”

The consultation is available here.