Background
The question is in fact solely based on remarks made in a House of Lords debate by Baroness Emma Nicholson on 16 March 2022. The newspaper reports I would suggest have no value as they are merely reporting what Nicholson stated in Parliament. I would therefore propose to examine what Nicholson stated in Parliament, and what she has said elsewhere, and ignore the media reports entirely insofar as they are merely reporting on proceedings in Parliament.
Therefore let us look at who Nicholson is, the context in which her remarks were made, and what she actually claimed.
Nicholson was proposing an amendment to the Health and Care Bill, which would have required the NHS to revoke its guidance (Annex B) on where to house transgender patients in the context of single-sex hospital wards, and reconsider them in view of single-sex exemptions presented in the Equality Act. After a brief discussion in Parliament, in which she presented her claims which form the basis for the OP's question, it was noted that the NHS were currently in the process of revising this guidance, and she withdrew the amendment just a few minutes after proposing it.
Nicholson was Conservative MP for Torridge and West Devon between 1987 and 1995, defecting to the Liberal Democrats at the nadir of the John Major premiership, standing down from the House of Commons in 1997 and being then appointed a Liberal Democrat life peer. After serving in the European Parliament for the Liberal Democrats between 1999 and 2009, she retired to the House of Lords, where in 2016 she decided to defect back to the Conservative party.
She appears to have first expressed her concerns about transgender people in women's wards on Twitter in 2019. In 2020 after a campaign on social media, she was removed from her honorary position as Booker Prize vice-president over alleged transphobia (her social media comments) and homophobia (her 2013 vote against same sex marriage).
Claims
Nicholson's claims can be summarized as follows:
- That 'Annex B' allows people who may outwardly appear to be big bearded men to 'identify their way into' female wards.
- That "many Health Trusts have instructed staff to declare evidence based assault of male on female while in hospital to be void since no male was noted on the ward records nor was a male patient present."
- That a specific hospital denied that a specific rape occurred based on the reasoning that in English law rape involves penetration with a penis, and that a female patient on a female ward who said they had been raped, cannot, in fact have been raped, because it was an all-female ward.
Claim 1: that Annex B allows male-bodied people on female wards
Annex B refers to a section of the NHS's policy commitment of September 2019 to deliver same-sex accommodation.
This begins:
"Providers of NHS-funded care are expected to have a zero-tolerance approach to mixed-sex accommodation, except where it is in the overall best interest of all patients affected."
And
- "Patients should not normally have to share sleeping accommodation
with members of the opposite sex.
- Patients should not have to share
toilet or bathroom facilities with members of the opposite sex.
- Patients should not have to walk through an area occupied by patients
of the opposite sex to reach toilets or bathrooms; this excludes
corridors.
- Women-only day rooms should be provided in mental health-
inpatient units."
The reasoning behind the elimination of this is:
- the preponderance of sexual assaults which occurred in mixed sex wards
- dignity of female patients
Hospitals are fined per patient per night for breaching this.
Annex B argues:
Under the Equality Act 2010, individuals who have proposed, begun or
completed reassignment of gender enjoy legal protection against
discrimination. A trans
person does not need to have had, or be planning, any medical gender
reassignment treatment to be protected under the Equality Act: it is enough
if they are undergoing a personal process of changing gender
And makes points:
Trans people should be accommodated according to their presentation: the
way they dress, and the name and pronouns they currently use.
This may not always accord with the physical sex appearance of the chest
or genitalia.
It applies to toilet and bathing facilities (except, for instance, that preoperative trans people should not share open shower facilities).
It adds:
Different genital or breast sex appearance is not a bar to this,
since sufficient privacy can usually be ensured through the use of curtains or by
accommodation in a single side room adjacent to a gender appropriate ward.
Therefore it seems clear that if someone 'dresses as a woman', and uses stereotypically female names and female pronouns, then they should be assigned a female ward as per Annex B, even if they might otherwise appear entirely male.
The guidance was not made from thin air, but is pursuant to the Equality Act 2010. The Equality Act 2010 states that:
A person has the protected characteristic of gender reassignment if
the person is proposing to undergo, is undergoing or has undergone a
process (or part of a process) for the purpose of reassigning the
person's sex by changing physiological or other attributes of sex.
'Other attributes of sex' are therefore the non-physiological attributes, such as name, appearance, pronouns, etc.
This means that essentially someone who has, or is proposing to, change their gender, a process which does not require any surgery, is protected from discrimination on the grounds of gender reassignment. An example of discrimination would be excluding someone from the female ward on the basis that they are transgender, except it is NOT unlawful to discriminate if it is a proportionate means of a legitimate aim for the matters of:
(a)the provision of separate services for persons of each sex;
(b)the provision of separate services differently for persons of each sex;
(c)the provision of a service only to persons of one sex.
Therefore we can conclude:
- that there is a very strong legal presumption in favour of someone who identifies as female being treated as female (the protected characteristic is 'undergoing' or 'proposing to undergo' a process of change of gender, so the hospital theoretically could hold that a given 'bearded man' claiming to be female is neither 'undergoing' nor 'proposing to undergo' such a process, if they believe he merely attempting to gain access to women, however it is clear that the initial presumption should be that the person genuinely has the protected characteristic of gender reassignment)
- that it is discrimination in law if we don't treat them as female
- however such discrimination is justifiable so long as it is both proportionate and done towards a legitimate aim.
In this context protecting women from sexual assault is a legitimate aim, but the meaning of proportionate must also be considered.
As such we can conclude:
- yes, Annex B essentially allows people who appear to be male to 'identify' into female wards
- Annex B follows a reasonable interpretation of the Equality Act - it's not something dreamed up out of thin air
- Whether or not we think Annex B is right or wrong in terms of logic, morals, etc, it appears to have a sound legal basis in that any discrimination (such as NOT allowing transgender people in women's wards) must be justified to be legal.
Nicholson says:
"The result of Annex B is that hospital trusts inform ward sisters and nurses that if there is a male, as a trans person, in a female ward, and a female patient or anyone complains, they must be told that it is not true - there is no male there"
While this is not directly specified in Annex B, it does seem that if NHS policies determine that a person is to be placed on a female ward, staff could only say 'this is a female ward, all the patients are female', and it would be inappropriate for staff to indicate to other patients that a given patient is biologically male/transgender. Indeed, it could be a criminal offence to do so, if the person has a Gender Recognition Certificate.
Claim 2: That "many Health Trusts have instructed staff to declare evidence based assault of male on female while in hospital to be void since no male was noted on the ward records nor was a male patient present."
This claim, made by Nicholson on 18th March 2022 on Twitter, following her speech early hours of the 17th of March 2022 is absurd and unbelievable.
Firstly we can start with her remarks in Parliament:
However, a rather wonderful lady—I cannot say who she is—was raped in hospital by a man about a year ago. There is only one definition of rape in Britain and that is male on female; you cannot rape if you do not have the structure of a male. She was raped and she naturally reported it to the police. The police spoke to the hospital, which informed them that there was no male in the hospital, therefore the rape could not have happened.
Firstly I believe she means 'ward', not 'hospital', but this is a reasonable mistake at 1:15am (the time of her remarks).
There is a second mistake, rape is not 'male on female', but anatomically either 'male on male', or 'male on female'
The legal definition of rape means it involves a penis penetrating anus, vagina or mouth. It does not refer to 'male' but simply to 'penis'. Therefore a person with a Gender Recognition Certificate as a female can be convicted of rape, if they have a penis. (The Interpretation Act 1978 would, in any case, import the word "she" into a statute referring to "he".) In addition, people who don't have penises can be convicted of rape as accessories under the Accessories and Abettors Act 1861 or as joint principals under the common law doctrine of joint enterprise. For example, 'Geezer girl' joins handful of females convicted of offence for joint enterprise rape, and Tracy Choi as an accessory to rape.
There is obviously some room for confusion in that:
- The NHS guidelines mean people identifying as female, but who have a functioning penis, should be assigned to the female ward
- It's possible that if the police said 'a rape has been alleged on the female ward', that someone could say "no, that's not possible because this is a female-only ward, there are no male patients here", if they were unaware of Annex B/the possibility for patients with male genitalia to be sent to a female ward.
- Baroness Nicholson's specific claim is the hospital said “that there was no male in the hospital, therefore the rape could not have happened”. Clearly Annex B specifically allows for a potential rapist (i.e. someone with a penis) to be housed in female accommodation, and therefore the alleged statement is a non sequitur.
Continuing with her claims on Twitter
Many Health Trusts have instructed staff to declare evidence based
assault of male on female while in hospital to be void since no male
was noted on the ward records nor was a male patient present.
This is an implausible and absurd claim:
- that "'many health trusts' 'have instructed' hospitals to deny sex crimes" requires evidence, because this is a serious claim that NHS Trusts have blanket instructions to hospitals to cover up sex crimes. She presents no evidence that this is the case.
- there is no reason for 'evidence-based assault' to be denied based on anything in the Equality Act, Annex B, etc. If an anatomically male person commits a sexual assault/rape in a female ward, then that person should most likely be sent to prison. The fact that a specific transgender sex criminal might have had the opportunity to sexually assault a woman as a result of Annex B doesn't imply that the hospital would systematically perform a cover up.
I did find a number of quotes from NHS trusts on this page, which is by a woman campaigning against things like Annex B, where NHS trusts state that a transgender person with a history of sex crimes should be treated the same as a woman who is not transgender but who has a history of sex crimes; i.e. a risk assessment should be carried out on how to protect other patients. This position, that rapists/sex criminals who identify as female are to be treated as female, seems to follow from the Equality Act which doesn't give a 'no true transgender' exception from protection from discrimination (it could be argued that it is proportionate to discriminate against transgender sex offenders by excluding them from female accommodation, but any discrimination, even against sex offenders, has to be justifiable). The quotes from NHS guidance relating to possible transgender female sex offenders being treated in hospital are numerous and appear to be authentic, but there is a big difference between 'rapists who are transgender are entitled to be treated as women under law', and what Nicholson claims, which is that NHS Trusts instruct their staff to lie that sexual assaults have not taken place, based on a non sequitur (that because rape requires a penis, and only men have penises, no woman in a women's ward could have been raped).
Claim 3: That a specific hospital denied that a specific rape occurred based on the reasoning that in English law rape involves penetration with a penis, and that a female patient on a female ward who said they had been raped, cannot, in fact have been raped, because it was an all-female ward.
This claim is solely sourced to Nicholson's speech, reporting on the speech, and tweets. There is no independent corroboration.
A user on Twitter asked Nicholson if she could confirm that she was talking about this case reported in February 2022 (Nicholson's speech was from March 2022). Nicholson refused to answer, saying she would not do anything to identify the victim.
As per the reporting from February 2022, originally from the paywalled Health Service Journal.
- A 'male' sexually assaulted a female patient in A&E in January 2021
- Sexual assault is not rape, they are distinct offences in law, although rape can be described as a specific type of sexual assault (e.g., penetration with fingers/a dildo vs. penetration with a penis)
- There is no suggestion that this person identified as female
- A&E is not covered by the NHS single sex policy
- The stated reason that the hospital stated that the sexual assault had not happened is that they incorrectly claimed that the man was being watched at all times.
It is noteworthy that a number of elements of this case are consistent with Nicholson's, i.e. the hospital not acknowledging the case for one year, and I would suggest that there are some possibilities:
- this is not the case Nicholson is referring to, and she is referring to some other case which has not yet been publicly exposed
- this is the same case, and:
- there was no rape but rather sexual assault, which means what she says about penises is actually irrelevant
- because it occurred in A&E Annex B is also irrelevant
- and while it is not mentioned in the reporting, the patient either believed the man identified as transgender, or the patient did in fact identify as transgender.
Anyway it's also worth noting that there are hundreds of actual rapes in hospital each year, so it's certainly possible that there was an instance of a rape being covered up in the circumstances Nicholson describes, however there is nothing to corroborate this.
Conclusion
To answer your original questions:
- unproven, only Baroness Nicholson's word. It may be totally accurate or it could be seriously inaccurate, we can't prove anything. However Nicholson's claim that 'many NHS trusts' specifically instruct hospitals to deny that a rape could possibly have occurred on a female ward(even though sexual assault is still a serious crime) is an extraordinary claim that is not supported by evidence (such as copies of the supposed guidance that instructs staff to cover up rape). This particular ridiculous claim draws into question the rest of her claims.
- Yes there is Annex B, and it does mean that male-bodied patients who identify as female should generally be assigned to female wards
- Some inaccuracy, Annex B does not imply that hospitals should claim a rape cannot have occurred because a ward is all female and only males can rape; in fact rape requires a penis, and Annex B explicitly allows people with male genitals on female words.
