“The position with regard to waiting lists and waiting times remains one of acute difficulty, in relation to both access to gender dysphoria services and the wider services commissioned by NHS England. Sustained efforts are however being made by NHS England to address these issues; I have outlined the work to expand the quality and capacity of services in relation to the specific topic of the gender dysphoria services above but, as I set out in my first witness statement, this is not a problem that can be addressed by financial investment alone. There are well-reported chronic workforce shortages across many clinical specialties that impede progress, including for paediatric and adult gender dysphoria services. Additionally, the approach for commissioning the [children and young persons’] gender dysphoria service in particular has to address a number of unique and complex challenges relating to safety, safeguarding and quality – against a limited and contested evidence base and lack of professional consensus.”
“As her body develops into a man’s body, she is becoming increasingly distressed and sad.”
“(2) A person has been referred to a health service provider (‘the relevant health service provider’) for the provision of health care services by— (a) an eligible referrer; or (b) themselves, with the prior approval of an eligible referrer. (3) The referral is for assessment or treatment in the course of the provision of health care services by— (a) a consultant; (b) a member of a consultant’s team; or (c) persons providing interface services where a person who has been referred may be referred on from those services to a consultant or consultant-led team. (4) The relevant health service provider, or the relevant body which has responsibility for the person referred, has been notified that the person referred— (a) has not commenced appropriate treatment; or (b) will not have commenced appropriate treatment, within eighteen weeks, beginning with the start date. (5) The notification referred to in paragraph (4) was given by— (a) in the case of the relevant health service provider or an integrated care board lawfully acting on their behalf; or (b) in the case of the Board, an integrated care board lawfully acting on their behalf. (6) The relevant body which has responsibility for the person referred is satisfied that the person has not commenced or will not commence appropriate treatment within eighteen weeks, beginning with the start date.”
“Under the NHS Constitution patients have the right to access services within maximum waiting times, or for the NHS to take all reasonable steps to offer a range of alternative providers if this is not possible and the patient requests it.”
“The 18 weeks commitment is a universal right, as set out in the NHS Constitution and the NHS Operating Framework. This commitment should be delivered for every patient, in every specialty and in every organisation unless the patient chooses otherwise or it is not in their best clinical interest. The tolerances provided by the national 18 weeks operational standards (a minimum of 90 percent for admitted patients and 95 percent for non-admitted patients to start treatment within 18 weeks) are for patients who choose to wait longer or for whom this is clinically appropriate.”
“You have the right to access certain services commissioned by NHS bodies within maximum waiting times, or for the NHS to take all reasonable steps to offer you a range of suitable alternative providers if this is not possible. The waiting times are described in the Handbook to the NHS Constitution.”
“You have the right to access certain services commissioned by NHS bodies within maximum waiting times, or for the NHS to take all reasonable steps to offer you a range of suitable alternative providers if this is not possible. The waiting times are described in the Handbook to the NHS Constitution.”
“You have the right to: • start your consultant-led treatment within a maximum of 18 weeks from referral for non-urgent conditions… … If this is not possible, the CCG or NHS England, which commissions and funds your treatment, must take all reasonable steps to offer a suitable alternative provider, or if there is more than one, a range of suitable alternative providers, that would be able to see or treat you more quickly than the provider to which you were referred.” (Emphasis added.)
“While there are a number of standards which are required to be achieved by the local educational authority, the setting of those standards is, in the first instance, for the local education authority alone to determine as long as those standards are not outside the tolerance provided by the section. There are going to be situations, some of which can and others of which cannot reasonably be anticipated, where the education provided falls below the statutory standard and the standards which the local education authority would set for itself. It is undoubtedly the position that within the area for which ILEA is responsible at the present time, the statutory standards and the standards that it would set for itself are not being met but this does not mean that ILEA are necessarily in breach of their duty under s. 8. The question is whether ILEA has taken the steps which the statute requires to remedy the situation which exists.”
“Merely to order a public body to perform its statutory duty does not add anything to that duty. Furthermore, in this case it is clear that a declaration would not assist. To declare that a public body should perform its duty does not add to or clarify the public body’s obligations where, as here, that body accepts obligations. At this stage it is possible to say that there are not in this case any specific steps which will be able to be identified which it can be said that the public body is not taking which it should take. The only purpose of continuing the proceedings would be to ascertain whether or not the authority was culpable in reaching the present unsatisfactory situation. Inquests of that sort are not the purpose of judicial review. In coming to this conclusion, I derive support from the decision of the Secretary of State not to intervene. He is usually in a better position than the courts to assess whether intervention would be constructive and, while not bound in anyway by his decision, the courts will have regard to his decision in deciding how to exercise their discretion.”
“…there is a fundamental difference in public law between a duty to provide benefits or services for a particular individual and a general or target duty which is owed to a whole population. One example of the former is in Pt VII of the 1996 Act, which deals with the housing authority’s duties towards individual homeless people. If certain conditions are fulfilled, s 193(2) requires that the authority ‘shall secure that accommodation is available for occupation by the applicant’. The individual applicant has the right to challenge a decision that the duty is not owed in the county court. Another example is ins 20 of the Children Act 1989 , which requires a local children’s services authority to provide accommodation for ‘any child in need’ because, in effect, he has no one who can look after him properly. An example of a target duty is ins 17 of the 1989 Act , which provides that ‘[i]t shall be the general duty’ of local children’s services authorities to provide a range of services to safeguard and promote the welfare of children in need within their area. This does not give any particular child a right to be provided with a particular service: see R (on the application of G) v Barnet London BC, R (on the application of W) v Lambeth London BC, R (on the application of A) v Lambeth London BC[2003] UKHL 57 ,[2004] 1 All ER 97 ,[2004] 2 AC 208 . In the case of social housing, there is not even a duty to provide it, although there is a duty to have and to operate a lawful allocation policy.”
“…in circumstances where a public body has acted unlawfully but where it is not appropriate to make a mandatory, prohibitory or quashing order, it will usually be appropriate to make some form of declaratory order to reflect the court’s finding. In some cases it may be sufficient to make no order except as to costs; but simply to dismiss the claim when there has been a finding of illegality is likely to convey a misleading impression and to leave the claimant with an understandable sense of injustice. That said, there is no ‘must’ about making a declaratory order, and if a party who has the benefit of experienced legal representation does not seek a declaratory order, the court is under no obligation to make or suggest it.”
“‘target duties’ because although cast in mandatory terms they lay down broad objectives to be achieved and impose upon the Minister the obligation to act in a way which is eg ‘designed to achieve’ or ‘secure’ the objective (section 1(1)) or to act “with a view to securing” the objective (section 1A(1)) or to “have regard to” the objective (section 1B(1)). They are target duties in the sense that (a) they do not specify a particular or precisely defined end result as opposed to a broad aim or object and (b) their mandatory nature is diluted by the fact that they do not compel the achievement of that end result instead requiring the Secretary of State only to factor those objectives into consideration.”
“These decisions establish that a claimant who establishes that a public body has acted unlawfully will normally be entitled to a declaration to mark the illegality in cases where no other relief is appropriate. I say “normally”, because, as Lord Toulson JSC emphasised, declaratory relief is always discretionary… Another circumstance in which it might be appropriate to withhold relief is where the proceedings were unnecessary because the breach was admitted at the outset: it is no part of the court's function to rub a defendant's nose in his admitted breach.”
“Parliament has become fond of imposing duties of a kind which, since they are of a general and indefinite character, are perhaps to be considered as political duties rather than as legal duties which a court could enforce. Many such duties may be found in statutes concerned with social services and nationalisation… Only in the unlikely event of its making total default would any of the above-mentioned authorities be at risk of legal compulsion in respect of its general duties.”
“[NHSE] has many calls on its budget and has a discretion to decide how much to focus on its directly commissioned services. A declaration would have the important effect of marking and acknowledging the continuing unlawful conduct in respect of the provision and commissioning of public health services by [NHSE] and ensuring that future budget allocations will be sufficient to fund services to meet [NHSE’s] legal duties (assuming those duties remain in force).”
“(1) 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.”
“…One of the issues the EA10 sought to deal with (and to some degree has) was moving away from medicalising protected characteristics. It is not clear that that has entirely been achieved in relation to the definition of disability. Be that as it may, in terms of gender-reassignment, the intention was to make it clear that a person need not intend to have surgery, or indeed ever have surgery, in order to identify as a different gender to their birth sex. We consider that the words we have highlighted in paragraph 173 make it clear, and beyond dispute, that gender reassignment need never be a medical process.”
“177. We had regard to the following extracts. In Column 168: ‘It concerns a personal move away from one’s birth sex, into a state of one’s choice… a personal process which may be proposed but never gone through. It may have happened. Its nature may be medical one. It may be choosing to dress in a different way, and moving a gender identity away from birth sex’. In Column 179: ‘Someone who was driven by a characteristic would be in the process of gender reassignment, however intermittently it manifested itself’. Column 171: ‘Gender reassignment, as defined, is a personal process, so there is no question of having something to do something medical, let alone surgical, to fit the definition’. Column 172: ‘Fourthly [as regards the definition], someone who has a gender-identity that is different from that expected from a person of their recorded natal sex is covered too. Where is the deficiency in our clause?’. Finally, Column 204: ‘At what point [proposing to undergo] amounts to “considering undergoing” a gender reassignment is pretty unclear. However, “proposing” suggests a more definite decision point, at which the person’s protected characteristic would immediately come into being. There are lots of ways in which that can be manifested – for instance, by making their intention known. Even if they do not take a single further step, they will be protected straight away. Alternatively, a person might start to dress, or behave, like someone who is changing their gender or is living in an identity of the opposite sex. That too, would mean they were protected. If an employer is notified of that proposal, they will have a clear obligation not to discriminate against them’ (our emphasis added). 178. We thought it was very clear that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum. That would be so, whether they described themselves as ‘non-binary’ i.e. not at point A or point Z, ‘gender fluid’ i.e. at different places between point A and point Z at different times, or ‘transitioning’ i.e. moving from point A, but not necessarily ending at point Z, where A and Z are biological sex. We concluded that it was beyond any doubt that somebody in the situation of the Claimant was (and is) protected by the legislation because they are on that spectrum and they are on a journey which will not be the same in any two cases. It will end up where it does. The wording of section 7(1) accommodates that interpretation without any violence to the statutory language. Consequently, there is jurisdiction to hear the gender reassignment claim.”
“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
“This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.”
“Answering the causation question in this context may involve two different kinds of inquiry. In a straightforward case the putative discriminator will have overtly applied a criterion based on the protected characteristic. But in other cases, although the ostensible criterion is something else, the putative discriminator may still have been influenced in his or her decision by the proscribed factor, consciously or unconsciously: in such a case it is necessary to examine their mental processes to establish what caused them to act as they did. In the jargon of discrimination lawyers the former are sometimes described as ‘criterion cases’ and the latter as ‘motivation’ cases. The distinction is not black-and-white, but it is a useful working tool.”
“It was argued in the courts below that there was a material difference between the circumstances of the male and female offenders so that their cases were not comparable for the purpose of section 23 (para 22 above). Cranston J[2013] EWHC 4077 at [54] accepted that comparing the women prisoners with the men prisoners was not comparing like with like. The women had different characteristics from the men, fewer being of high or very high risk, and the criteria for admitting them to APs were different. However, in the Court of Appeal, Elias LJ rejected this argument. Those differences were not material to the present issue, which was accommodating them close to home[2015] 1 WLR 3781 , para 44. I agree. The question of comparing like with like must always be treated with great care—men and women are different from one another in many ways, but that does not mean that the relevant circumstances cannot be the same for the purpose of deciding whether one has been treated less favourably than the other. Usually, those circumstances will be something other than the personal characteristics of the men and women concerned, something extrinsic rather than intrinsic to them. In this case, the material circumstances are that they are offenders being released on licence on condition that they live in an AP. Those circumstances are the same for men and women. But the risk of being placed far from home is much greater for the women than for the men.”
“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.”
“The direct consequences of long waiting times and waiting lists are increased risk of harm to the individual and increased pressures on other parts of the NHS system. Trans people are at higher risk of physical and mental health problems, exacerbated by barriers to access of specialised gender identity services. Incidence of ‘minority stress’ is high. Evidence is that coping strategies include self-sourcing of cross-sex hormone drugs from un-regulated sources, self-harm, use of drugs, alcohol, tobacco or high risk sexual activity. The incidence of suicidal ideation is high compared to the general population. Un-met trans-healthcare is a contributing factor to the increased disproportionate risk of acquiring HIV in the trans-population. Trans people have complex interactions with other health services which will be exacerbated if there is unmet transgender specific care, particularly: primary care, mental health, CAMHS, sexual health, A&E and crisis services.”
“Not all children and young people who will be impacted by the proposals are likely to share this protected characteristic: • Children and young people who are on the waiting list for GIDS, or who may be referred to a Phase 1 service in the future, or who are receiving an assessment by GIDS and who are without a diagnosis of gender dysphoria, do not share the protected characteristic of ‘gender reassignment’ as a class or cohort of patients. They cannot be treated as “proposing to undergo” a process (or part of a process) for the “purpose of reassigning” their sex “by changing physiological or other attributes of sex”
“A clinically led process for the transfer of clinical responsibility from the Tavistock and Portman NHS Foundation Trust to a new provider will be established to mitigate risk. The proposed interim service specification would prevent referrals by non-health professionals; for the reasons explained, it is not possible to determine whether children and young people who may be impacted by this provision are likely to share the protected characteristic of ‘gender reassignment’. As a mitigation to any adverse impact, as new regional pathways are established it is planned that managed networks will be developed that will provide support resources for GPs, schools and families in regard to children and young people who present with less severe manifestations of gender incongruence or gender diversity or who otherwise do not meet the access criteria for a specialised gender dysphoria service. The proposed interim service specification provides further clarity to the terms of the current GIDS service specification in regard to children and young who source puberty blockers drugs and endocrine drugs from unregulated sources; for the reasons explained, it is not possible to determine whether children and young people who may be impacted by this provision are likely to share the protected characteristic of ‘gender reassignment’. These provisions are in line with the advice of senior clinicians and reflect, in part, the legal duties on NHS bodies in regard to safeguarding. The independent Multi Professional Review Group will continue to operate in the case of referrals of children under 16 years to the endocrine clinics until the research protocol is established. Mitigating actions in regard to children and young people who are currently under the care of GIDS, and their families, will focus on ongoing, clear and timely individual communication.”