The Equality and Human Rights Commission (ERHC) is preparing to sue NHS England over its failure to offer fertility preservation services to transgender patients. 

The judicial review action will be launched on grounds of discrimination against trans patients, the EHRC said. The commission believes that all transitioning patients should be given the opportunity to store their eggs or sperm, as gender reassignment treatment often involves loss of fertility. Gamete freezing would give trans patients an opportunity to have biologically related children in the future with a partner or via a surrogate. 

NHS England does not have a central policy on egg and sperm freezing services for trans patients. The decision on whether a trans patient is offered fertility preservation services varies between individual Clinical Commissioning Groups (CCGs). Many CCGs do not fund these treatments for trans people. 

The EHRC argues that gender dysphoria falls under the special commissioning remit, which ensures that appropriate treatments are offered to those with complex conditions. 

Elizabeth Prochaska, legal director of the EHRC, says the commission is planning to sue NHS England to ensure transgender individuals are given an informed choice regarding their fertility. 

'We want to make sure there is no discrimination in the health service in the provision it makes for people. The trans community is growing and it's particularly vulnerable and it needs this support and it should be done on a national level,' she told Sky News. 

The legal action is likely to be controversial as NHS England is currently under significant financial strain and struggling to budget for compulsory core services. NHS England has said that it will contest any such case brought to the courts.

A spokeswoman said: 'NHS England has responded in detail to the EHRC explaining why we believe their request is both misjudged and potentially unfair to NHS patients. If, however, they still decide to sue the NHS, the courts will consider the matter in the usual way.' 

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Reproduced from BioNews with permission, a web- and email-based source of news, information and comment on assisted reproduction and human genetics, published by Progress Educational Trust.