Equalities watchdog settles case over fertility services for gender reassignment patients

The Equality & Human Rights Commission has ended its judicial review challenge against NHS England over the funding of fertility services for patients undergoing gender reassignment treatment.

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

The Commission was given permission in January to bring a claim.

A Commission spokesperson said: “We have settled this case with NHS England as they have agreed to send updated guidance to Clinical Commissioning Groups on providing fertility preservation services that do not discriminate against different groups of people, including transgender patients. This guidance will be an improvement on the existing advice issued to CCGs.”

An NHS England spokesperson said: “We are pleased to see that the Equality and Human Rights Commission has abandoned its claim against the NHS, which was without merit.”

NHS England, which is seeking to recoup significant legal fees incurred in the case, said it would  reissue guidance to CCGs “reminding them of their longstanding legal duties when making commissioning decisions but will not do the three actions the EHRC wrongly contended were legally necessary”.