Two trans healthcare activists have lost a Court of Appeal challenge against NHS England over waiting times for gender dysphoria treatment.
Eva Echo and Alex Harvey brought legal action against the medical body over “extreme” waiting times for a first appointment with a specialist, along with a 12 year-old and 15 year-old who cannot be named.
At a High Court hearing in November 2022, their lawyers argued that the organisation is failing to meet a duty to ensure that 92 percent of patients referred for non-urgent care at services commissioned by NHS England—including gender dysphoria clinics— start appropriate treatment within 18 weeks.
In a ruling in January, Mr. Justice Chamberlain dismissed the claim, finding that this was a duty to “make arrangements” and applies to patients as a whole, rather than individuals.
The four people challenged this ruling at a hearing earlier last month, with their lawyers arguing the regulation’s language was “deliberately and unambiguously framed in mandatory language.”
But in a decision on Monday, Lady Justice King, Lord Justice Moylan and Lord Justice Popplewell dismissed the appeal.
Lord Justice Popplewell said: “NHS England’s (NHSE) function is one of arranging.
“It cannot achieve a waiting time standard itself by the provision of services, but only by making arrangements designed to achieve it through the provision of services by others.
“Whether those arrangements do achieve it is not in NHS England’s hands.”
‘Let Down’
Lord Justice Popplewell continued: “There are important policy considerations which NHSE will have to make which may impact on waiting times, quite apart from any consideration of allocation of financial resources.“Strategies for patient safety, treatment outcomes, staff training and working conditions, long term planning, regional capacity, and buildings and equipment are a few which readily come to mind.
“These are pre-eminently matters of policy involving discretionary judgments for the executive to make.”
The four claimants were supported by the Good Law Project as part of the group’s “we are just people too” campaign.
Good Law Project’s legal officer Bekah Sparrow said: “Today’s outcome is not what we hoped for, and we are incredibly disappointed to see NHS patients let down once again.
“Good Law Project wants to see a world in which everyone, regardless of their gender identity, is able to access the healthcare they need within reasonable timeframes.
“We continue to stand alongside the transgender community, and all NHS patients, as we work towards a fairer world.”
The group said that waiting times have “continued to get longer and longer, and this situation predated the pandemic by a long margin.”
Unanimous Ruling
Following the court’s first ruling in January, NHS England told the not-for-profit group it would consider how its policies impact on young trans people waiting for healthcare.The NHS had excluded trans young people and children on the long waiting lists from its definition of “gender reassignment,” a protected characteristic, when designing a new treatment service, according to the Good Law Project.
It conducted an equality assessment which concluded “children and young people who are on the waiting list Gender Identity Development Service (GIDS) “cannot be treated as proposing to undergo” a process of gender reassignment.
The ruling confirmed this was an incorrect understanding, stating: “there is no reason of principle why a child could not satisfy the definition [of gender reassignment] … provided that they have taken a settled decision to adopt some aspect of the identity of the other gender.”
The Good Law Project said that those on the GIDS waiting list “will now be protected by the Equality Act 2010 which means the NHS will have to consider their needs and develop policies which don’t unlawfully discriminate against them.”
Responding to Monday’s judgement, a NHS spokesperson welcomed the Court of Appeal’s unanimous ruling.
“The NHS will continue to drive forward improvements in gender services and tackle the waiting lists which have grown because of rapidly rising demand, while taking action to reduce the wider elective covid backlogs,” the spokesperson said.
