Court finds waiting times for gender identity…

The NHS commissions specified services for rare and very rare conditions, and this includes gender identity-related services for children and adults. The demand for these services increased substantially from 2012 to 2017. While the budget for these services has increased, capacity did not keep pace with demand. The result has been very long waiting times for the children, adolescents and adults referred for these services.

A group of claimants consisting of trans children and adults, and organisations campaigning on the rights of the trans community, brought a claim for judicial review against the NHS, arguing that these delays were unlawful.

On 16 January 2023, the High Court (Chamberlain J) dismissed the claim: R (AA) v NHS Commissioning Board [2023] EWHC 43 (Admin). That decision was upheld by the Court of Appeal in R (AA and others) v National Health Service Commissioning Board [2023] EWCA Civ 902.

In the High Court, whilst Chamberlain J acknowledged that the long waiting times had “serious effects” on the child claimants, he found that the NHS was not in breach of the following obligations:

its duty under reg. 45(3) of the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (“the 2012 Regulations”) to ensure that 92% of NHS patients referred for the services it commissions have commenced appropriate treatment within 18 weeks of referral;
its statutory duty under s. 3B of the National Health Service Act 2006 by arranging services for children who may need puberty-delaying treatment in such a way that the children will be unable to access the services before the onset of puberty;
its statutory duty under s. 2 of the Health Act 2009 by failing to have regard to the right of adult gender dysphoria patients under the NHS Constitution to commence treatment within 18 weeks of referral.

“Target duties” and timelines for treatment

Chamberlain J found that the 2012 Regulations imposed only a “target duty” to make arrangements with a view to ensuring that the 18-week standard is met. Failure to achieve that standard, without more, was not a breach of NHS England’s legal duties. Chamberlain J explained that target duties was a description of duties with a number of different features, not all of which need be present, but which often include:

duties which the legislator must have intended to confer a broad discretion, subject only to the constraints of rationality, because of the breadth of the language used in the duty;
duties which require the person who owes it to act with a view to achieving a particular result, rather than simply to achieve that result; and
duties which are owed to the population as a whole rather than to any individual.

The evidence showed that the NHS was complying with its target duty: the court had to bear in mind the function of judicial review, which was not generally to look at whether an authority is culpable for an admittedly unsatisfactory situation. The court said that the causes of the current long waiting times included: (i) the very marked increase in demand for these services in the five years up to 2017; (ii) the recent clinical controversy surrounding GID treatment, especially but not only for children; (iii) the difficulty, across both children’s and adults’ services, of recruiting and retaining sufficient clinical specialists, despite the availability of funding for them; and (iv) the need, in the light of the foregoing matters, to redesign the commissioning model. It was impossible to stigmatise the steps being taken to address the problems as irrational.

Similarly, Chamberlain J found that given s3B of the National Health Service Act 2006 conferred a broad discretion, it could not be said that the NHS was in breach of that provision. The duty under s2 of the Health Act 2009 only required to have regard to the NHS Constitution, but that did not impose duties additional to those in the 2012 Regulations.

Gender identity in discrimination law more widely

Chamberlain J’s judgment is important to those advising trans individuals or those who interact with them more widely, as it is the first senior court judgment on who has the protected characteristic “gender reassignment” under s7 of the Equality Act 2010. Chamberlain J upheld the interpretation of “gender reassignment” adopted in the high-profile Employment Tribunal decision Taylor v Jaguar Land Rover (Case No 1304471/2018). That interpretation includes those described as “gender-fluid”.

Chamberlain J gave further guidance on who would have the protected characteristic which will be important in future cases relating to gender reassignment discrimination:

there is no requirement for any medical changes to sex attributes;
a trans person may decide to make only some changes to their gender and not all;
a person may have the protected characteristic before they start the process of changing their gender: they only need “propose” to undergo at least part of the process, and this “connotes a conscious decision, which can properly be described as settled, to adopt some aspect of the identity of a gender different from that assigned at birth. A passing whim will not do, but nor is an intention required that the change should be permanent” (para 131); and
children can in principle satisfy the definition in s7, but not every child referred to the children’s gender identity development service will have the protected characteristic: while many may present with symptoms of gender-related distress for which they receive help, others may not, at the time of referral, have taken any settled decision to undergo any part of a process of changing any attribute.

Chamberlain J held, however, that the waiting times did not amount to direct or indirect discrimination on the basis of gender reassignment. There were relevant differences between those seeking gender identity-related services and those seeking other specialist services which explained the discrimination for the purposes of direct discrimination. Those factors were the four same reasons listed above as causing the waiting times.

There was no indirect discrimination because there is no policy, criterion or practice which is applied both to those seeking gender identity-related services and those who are not.

A challenge based on breach of the public sector equality duty also failed.

That decision was upheld by the Court of Appeal very largely for identical reasons.

Charles Bishop is a barrister at Landmark Chambers.

David Lock KC acted for the Claimants in the High Court.