Transgender fertility rights case against NHS dropped

A legal dispute over access to NHS fertility services for transgender people has been resolved after new guidelines were issued.

The Equality and Human Rights Commission (EHRC) initiated legal proceedings against NHS England in August 2018, claiming that the NHS's refusal to offer gamete storage as a blanket policy violated the Equality Act 2006, which protects transgender people from discrimination (see BioNews 969).

'A choice between treatment for gender dysphoria and the chance to start a family is not a real choice,' said EHRC chief executive Rebecca Hilsenrath, at the time. 

The treatments sometimes used in transitioning can affect a person's fertility. As in cancer patients, before commencing treatment, eggs or sperm can be collected and frozen for later use in IVF, giving patients a chance to have biologically related children in future. 

In England, decisions about funding fertility treatments are taken by local Clinical Commissioning Groups (CCGs), meaning that the same treatments may be available to NHS patients in some areas but not others. This includes treatment for infertile couples, as well as fertility preservation. While the NHS widely offers gamete storage for cancer patients (where appropriate), patients looking to transition are not always offered these services. Many CCGs have also been cutting back on funding fertility services for infertile couples in recent years (see BioNews 983 and 969). 

The EHRC had called for the NHS to enforce a consistent standard of fertility service for transgender people, but will now drop the case following NHS England's decision to issue strict guidelines to all CCGs, saying that 'strong justification' needs to be shown by any CCG refusing to offer fertility preservation to trans patients, and that refusals not meeting this standard may be challenged in court. 

NHS England has expressed content with the final outcome, with a spokesperson stating: 'We are pleased to see that the Equality and Human Rights Commission has abandoned its claim against the NHS, which was without merit.'

However, Dr Jane Hamlin, president of trans support group The Beaumont Society, expressed disappointment that the case was being dropped: 'Trans people do not ask for special treatment… we just want to experience family life like our friends and relatives.'