Permission given for legal challenge over funding of transgender fertility treatment

The Equality and Human Rights Commission has been given permission to proceed with its judicial review claim over the funding of fertility services for patients undergoing gender reassignment treatment.

At present local clinical commissioning groups are responsible for deciding whether to provide fertility services to such patients.

The EHRC argues that NHS England has an obligation under both the National Health Services Act 2006 and equalities legislation to provide gamete retrieval and storage for trans patients.

NHS England has countered by saying the EHRC’s case is both misjudged and is potentially unfair to NHS patients as a trans patient who seeks the retrieval and storage of their gametes before undergoing treatment that might limit their fertility is in the same position as any other patient who might undergo fertility-limiting treatment, for example, because of cancer.

Barristers Fenella Morris QC and Catherine Dobson of 39 Essex Chambers are to act for NHS England.

The EHRC said in September when it launched the action that gamete storage should be available across the NHS and not depend on local decisions.