What we’re asking NHS England

NHS ENGLAND · SAME-SEX HOSPITAL ACCOMMODATION

We are not asking NHS England to reverse its policy. We are asking it to do the work that would justify the policy and make it safe to apply: to publish what it rests on, to give staff a procedure for the hardest cases, and to say how trans patients’ own safety is to be protected. This page sets out each request, the evidence it rests on, what would answer it, and every letter we send and every reply we receive.

Hospital accommodation — our coverage

1. What has changed, and where it stands — our position and links to everything we have published
2. What we’re asking NHS England — the five requests and the correspondence register (you are here)
3. How the guidance uses its sources (EN-026) — the Evidence Note each request rests on
4. A guide for trans patients and a guide for clinicians

Why these requests, and not others

Whether hospital placement should follow biological sex is a legal and values question, and our evidence does not settle it. We have not asked NHS England to change that rule. Each request below follows from a specific finding in EN-026, and each would apply in the same way to a policy pointing the other way. The covering letter NHS England sent with the guidance asks trust boards to make sure local decisions are “lawful, proportionate, evidence-based and clearly documented”. We are asking NHS England to meet the same standard nationally.

The five requests

1. Publish the proportionality assessment

What we ask. Publish any assessment NHS England made of whether a national default of placement by biological sex is proportionate, or say that none was made and how providers are expected to make one.

Why. The Equality Act’s exceptions for separate and single-sex services apply only where their conditions are met and the provision is “a proportionate means of achieving a legitimate aim”. The guidance states a national default with individual clinical exceptions, but does not explain how proportionality is to be assessed at national, service or individual level (EN-026, section 1).

What would answer it. The assessment, or a clear statement that none exists, with guidance on where the assessment is to be made.

2. Publish the evidence and the engagement behind the guidance

What we ask. Publish the evidence relied on for the guidance’s factual propositions, and a summary of the stakeholder engagement it describes.

Why. The guidance cites no studies, datasets or evidence syntheses, including for its statements that clinical exceptions will be rare and that most services for children are not separated by sex. It describes “consistent support” from its engagement, but nothing about the engagement is published or linked (EN-026, section 4). That is a limit on citation, not a finding that the propositions are wrong; publishing the basis would let others check them.

What would answer it. The sources relied on, or a statement that the propositions rest on operational judgement; and a summary of who was engaged and what they said.

3. Correct or explain the reporting-guidance link

What we ask. Publish the updated reporting guidance at the page the guidance links to, or explain where it can be found.

Why. The guidance says “related reporting guidance has also been updated”, and links three times to NHS England’s mixed-sex accommodation statistics page. When we checked, immediately before publishing EN-026 on 17 October 2026, that page still offered collection guidance dated October 2019, built on the 2019 policy, which counts only “unjustified occurrences” of sleeping-accommodation breaches (EN-026, section 5). Updated instructions may exist through the data collection system; if so, the public page does not show them.

What would answer it. The updated collection guidance on the statistics page, or confirmation of where providers find it.

4. Give staff a procedure for the hardest cases

What we ask. Issue national guidance, or minimum standards for local procedures, on: how a patient’s sex is to be established for the purpose of the default; patients who are unconscious or lack capacity; non-binary patients; patients with variations of sex development; and who decides a disputed placement, how quickly, and how often it is reviewed.

Why. The 2019 guidance had specific instructions for several of these situations. The 2026 guidance does not reproduce them and supplies general principles instead. It does not define when a placement by biological sex “would not be clinically appropriate”, and neither it nor the covering letter specifies a decision-maker, review interval or timescale for a disputed placement (EN-026, sections 3 and 5). These gaps affect every patient on the ward, not only trans patients.

What would answer it. National guidance on these points, or an explicit statement that they are left to trusts, with the minimum each trust’s procedure must cover.

5. Say how trans patients’ own safety is to be assessed

What we ask. Set out how the risks to a trans patient placed by biological sex are to be assessed and reduced, and say whether NHS England considers HSSIB recommendation R/2024/041 met for non-binary patients and therapeutic mental health environments.

Why. The EHRC’s statutory code itself recognises that requiring trans people to use facilities for their biological sex “may cause safety risks and distress for trans users”. The guidance makes safeguarding part of its general framework but does not specify how risks to a trans patient in a placement by biological sex are to be assessed, beyond its general principles, the single-room offer and the clinical exception. HSSIB asked NHS England for guiding principles for mental health inpatient care, “including patients who are transgender and non-binary”; the guidance addresses that through general principles, without expressly developing those parts (EN-026, section 5).

What would answer it. A described approach to assessing risk for trans patients, and NHS England’s view on whether the recommendation has been met.

How we are doing this

Report first; escalate only if ignored; never both at once. Request 3 goes to the team responsible for the mixed-sex accommodation statistics, as a report of a published defect, and is recorded in our Evidence Transmission Register. Requests 1, 2, 4 and 5 go to NHS England as correspondence.

Requests 1 and 2 ask for information NHS England may hold. If there is no reply within twenty working days, those two requests — and only those two — will be resubmitted under the Freedom of Information Act 2000. Requests 4 and 5 ask NHS England what it will do, and stay as correspondence. Under the register’s own rules, requests for information are recorded here and not in the Evidence Transmission Register.

Nothing in EN-026 depends on a reply, and publication did not wait for one. Any reply is recorded here, and anything in it that bears on EN-026 is reflected in the note’s revision history.

Correspondence register

Every approach to a public body on this subject, what was asked, and where it stands. Times are UTC. Delivery is recorded; opens and clicks are not, because an automatic open by a security gateway is not evidence that anyone has read a letter.

Where it stands

Both letters were sent on 17 October 2026 and delivered within seconds. Both were logged as opened, and the first as clicked, within seconds of delivery. That indicates a security gateway scanning the message and its links, not a reader, and neither is evidence that anyone has read them.

19 October 2026. NHS England’s Elective Analysis team replied to NHSE-HA-001: the statistics page “will be updated to reflect this change”. That answers the second part of request 3. It does not say whether updated collection guidance has already been issued to providers, so we have asked. When the statistics page changes, we will record it here and in the Evidence Transmission Register. NHSE-HA-002 (requests 1, 2, 4 and 5) is still awaiting a response. The reply does not change EN-026, which describes the page as it stood when checked on 17 October 2026.

20 October 2026. Request 3 answered. NHS England updated the statistics page the day after its reply. It now offers Monthly Mixed-Sex Accommodation Return Guidance version 1.6 (“Updated: October 2026”), which reflects the 2026 guidance, removes the ‘unjustified’ and ‘justified’ breach terminology and applies from October 2026 data. The 2019 guidance has been removed from the page. We have recorded the fix in the Evidence Transmission Register, where ET-078 is now resolved. Requests 1, 2, 4 and 5 are still awaiting a response.

21 October 2026. Remaining wording aligned. When we thanked NHS England on 20 October, we noted that the statistics page’s introduction and the breach rate methodology still described the collection as counting “unjustified mixing”. NHS England replied on 21 October that both have been reworded to match version 1.6, and that a note was issued to provider information departments the same day. We checked both: the page now refers to “the number of breaches”, and a revised methodology file replaces the earlier one, with the two passages reworded and nothing else changed. Neither the statistics page nor the methodology now uses the old terminology. This is an update to a resolved entry, not a new issue.

25 October 2026. An impact assessment has been reported. On 18 October the Guardian reported that NHS England has prepared an internal impact assessment of the guidance, covering each protected characteristic. As reported, it identifies benefits from the guidance’s focus on privacy, dignity and safety, and possible adverse impacts for trans patients, including delays and a greater risk of corridor care where side rooms are unavailable, and avoidance of healthcare. NHS England has not published the assessment and declined to comment; we have not seen it. It bears on requests 1 and 5. If NHSE-HA-002 has had no reply by 16 November, our Freedom of Information request will ask for it by name.

If there is no reply by 16 November 2026 (twenty working days, counting from Monday 19 October as the first working day after a Saturday send), requests 1 and 2 will be resubmitted under the Freedom of Information Act 2000. Requests 3, 4 and 5 stay as correspondence.

Institutions are named. Individuals are not. Approaches made to us in confidence are not recorded here in any form.

Corrections and queries: [email protected].

Changes to this page
17 October 2026 — first published. Later the same day, both letters sent; send times checked against the message headers and delivery times against the mail platform’s log. NHSE-HA-001 recorded in the Evidence Transmission Register as ET-078.
19 October 2026 — reply to NHSE-HA-001 recorded (received 13:07 UTC; follow-up sent 13:41 UTC), and “Where it stands” updated.
20 October 2026 — request 3 recorded as answered: the statistics page now offers collection guidance version 1.6.
21 October 2026 — Update: NHS England’s further reply to NHSE-HA-001 recorded (received 13:33 UTC; thanks sent 15:34 UTC); the statistics page’s introduction and the breach rate methodology now match version 1.6.
25 October 2026 — Update: reported NHS England impact assessment noted under “Where it stands”.