Is there a right to same-sex intimate care?

R (VRP) v Royal Borough of Kingston upon Thames

The High Court of England and Wales has recently considered a case involving the provision of single-sex intimate care to a young woman, VRP, with sever physical and learning disabilities. R (VRP) v Royal Borough of Kingston upon Thames [2025] EWHC 504 (Admin) arises from a very complex set of facts and the claim which was brought changed significantly as the case when on, meaning that it may be difficult to draw out clear principles that would be applicable to future cases.

VRP is currently being cared for by her parents. They are in receipt of funding from the Royal Borough of Kingston’s Adult Social Care services and use this to arrange provision of VRP’s care needs. They anticipate that there will come a time when they will not be able to do this, at which point VRP will fall under the direct care of the Borough. The dispute in this case arises from concerns that VRP’s parents have that this will mean that she will not be guaranteed single-sex intimate care.

VRP’s parents have brought a judicial review to assess the lawfulness of:

1. Not recording the sex of service users when carrying our assessments for social care under the Care Act 2010 and/or refusing to record VRP’s sex in her care plan or other data;

2. The policy of recording the gender of service users as a mandatory category when carrying out assessment for social care; and

3. The failure “to operate a system that allows for same-sex personal care and/or its refusal to contemplate commissioning such services” [5].

However, the legal position had evolved considerably by the time the case was finally heard. The Claimant dropped the second challenge, as it was accepted that the Borough is obliged to record the gender of service users in light of directions issues by NHS England, pursuant to powers conferred by ss.254 and 259 of the Health and Social Care Act 2012 [6].

Additionally, it was common ground by both parties that the system operated by the Borough allows for the provision of same-sex personal care; that the Borough does not refuse to record the biological sex of service users; that VRP’s sex has been recorded in her care plan; that local authorities have the power to provide personal care to service users on a same-sex basis; and that it is permissible for social workers to ask the sex of service users [6].

Mrs Justice Williams approached this case on the understanding, shared with both parties, that references to “sex” are to “biological sex, rather than to gender” [4].

Issues:

This is a complex case which gave rise to several legal issues in dispute. Because this case developed as a response to changes in both accepted facts and accepted law, Williams J felt it necessary to set out the issues systematically. There are, broadly, three issues in this case:

1. Does the Care Act 2014, the Human Rights Act 1998, and/or the Equality Act 2010 in combination give rise to “a duty to operate a system that ensures or which has the objective of ensuring the provision of same-sex personal/intimate care for female service users by default, unless there is a request or preference or it is assessed to be in the service user’s best interests to have care delivered on some other basis”? [9].

   The claimant argued that this duty exists; the defendant argued that it does not. Instead, the Borough argued that the appropriate care will depend upon the particular facts of the case.

   The Borough argued that, even if the specific duty identified by the claimant did exist, it would be no different than the application of the duty on s.1 of the Care Act 2014 where the result of an assessment is the provision of same-sex care in non-exceptional cases anyway.

2. Does the statutory duty (if it exits) or the other duties, particularly the Public Sector Equality Duty, require the Borough to ensure that the biological sex of its service users are recorded and, if so, has that been met?

   The claimant contended that it does because not doing so prevents the Borough from complying with its duty to provide same-sex care and because failure to record the protected characteristic of sex when it is relevant to the performance of a public function prevents the Borough from being able to meet is obligations under s.149 of the Equality Act (The PSED).

   The Borough accepted that it should record the biological sex of service users in any case where biological sex is relevant to its obligations under the Care Act and contends that it “always does record biological sex where it is relevant to Care Act functions but does not necessarily do so in terms” [9].

3. Is the Borough’s system for the assessment, support planning an commissioning of personal care adequate to fulfil the duty (if it exists) to have in place a system that ensures or aims to ensure the provision of same-sex intimate care?

   The claimant contends that the Borough fails to meet these duties in practice.

   The Borough contends that, if such a duty exists, then it is met because “its system always provides same-sex intimate care where appropriate (which in practice is in all cases)” [9].

Relatedly, the claimant took issue with certain communication sent from the Borough which indicated that the Borough had failed to meet its duties set out above. One important aspect of which was a letter sent to the claimant which referred to “the assumption that transgender employees would never be excluded from providing a service of the council” [10]. The claimant had initially argued that this was an error of law and/or an unlawful fettering of discretion but this claim was not pursued because the Borough accepted that “local authorities do have the power to provide personal care to service-users on a same-sex basis and that the Equality act 2010 does not preclude this” [10].

The central challenge made by VRP was that the failure to set out a clear policy requiring the recording of the sex of service users, coupled with the failure to set out a clear policy requiring the provision of same-sex care, in itself amounted to a breach of the Borough’s legal obligations [11].

Facts:

VRP has severe learning and physical disabilities. She cannot write, type, dress herself, wipe herself after using the toilet, deal with menstrual care, ear unsupervised, shower or bath herself, and she has no understanding of danger. She needs “full-time one-to-one care, including intimate personal care” [17]. Her parents had always assumed that any intimate care provided to her would be by biologically female carers, “in order to protect her dignity and privacy and keep her as safe as possible from potential abuse” [18]. This assumption was challenged, however, when the school that VRP was attending indicated that it was changing its policy to permit “cross-gender” provision of intimate care [18]. After objections were raised, this was reverted to the school’s original policy of providing same-sex intimate care.

The incident prompted VRP’s parents to check other paperwork relating to her care and they noticed that the Disabled Children’s Team in the Borough collected data on “gender” but not on “sex” [18]. They raised concerns about this which was passed onto the Borough’s Adult Social Care team when she transitioned into their care. As part of the assessment process for VRP’s move to adult care, there was “no doubt” as to her biological sex [20]. However, the forms provided did not record sex but instead asked for VRP’s gender [21]. This concerned her parents as they understood “gender” to be referring to “an inner feeling which may or may not correspond with concepts of masculinity and femininity” [22]. This was’t something VRP’s parented felt about to comment on; they knew their daughter’s biological sex but felt gender was not something that VRP was able to decide upon or express any feeling about.

The use of the term “gender” was cause for concern for VRP’s parents as they felt that this was not tracking biological sex and they wanted to be sure that she would have access to same-sex intimate case as a default, rather than on special request or because a preference has been expressed [23]. In response to this, the Borough added an alert to VRP’s file:

“[VRP] is female and wishes to be supported by biological females with any personal care tasks. Her family don’t feel she has the capacity to make an informed decision about her gender therefore it is noted as unspecified on our records.” [24]

This was communicated to VRP’s parents where they were informed that this had to be done as a note because there was no category that recorded “sex” on the system. VRP’s father responded by reiterating her concerns that once he and his wife were dead or incapacitated it would fall to the Borough to arrange for VRP’s care. His concern was that the Borough would not feel under any obligation to provide same-sex intimate care. VRP’s care worker at the Borough, Ms Reilly, replied saying “my understanding is that within the sector, the general expectation is that females will only have personal care delivered by female members of staff” [25].

On 27 March 2023, VRP’s father made a FOIA request asking whether the Borough had any policies or procedures aimed at providing single-sex intimate care for female service users. The Borough answered “no” and indicated that the reason why sex was not recorded on its systems was because “We are required by the Department of Health to record only the characteristic of gender” [28]. At court, the Borough argued that, while this response would fairly indicate that there were no procedures in place to ensure same-sex intimate care, in practice this was nevertheless invariably provided. The reason for this answer was because the Borough did not have any written policies or practices relating to same-sex intimate care.

Despite these answers, when VRP’s care plan was amended to record her biological sex as female and her gender as “unknown” [32]. Ms Reilly, who was in charge of VRP’s case gave evidence that her default assumption is that anyone whose gender is recorded as female is biologically female and that the gender of all service users that she has worked with corresponded to their sex.

VRP’s father then sent an information request under data protection legislation arguing that the failure to record the sex of clients results in the Borough being unable to meet its statutory obligation to provide adequate care, which includes same-sex care. The Borough responded as follows:

ASC [Adult Social Care] is of the view that collecting sex data would not either align with the view that “sex” is defined as biological for the purposes of Equality or your intended outcome of reassurance from ASC that intimate carer to your daughter would only be provided by the same biological sex recorded at birth as the person receiving care.

It was acknowledged that was not easy to understand.

In addition, the letter identifies “Equality Issues” which were premised “on the assumption that transgender employees would never be excluded from providing a service of the Council” [38]. The thrust of the letter was that the Borough had “no expressed intention of limiting the provision of personal care” on the basis of sex and “no plan to facilitate or support an introduction of single sex services for the provision of adult social care in the current market”. Effectively, the Borough’s position was that the recording of VRP’s sex was solely to meet “her preference for the delivery of personal care by biological females” [39], but that this would not be provided as a matter of general policy. The Borough reiterated that there was no legal duty to meet a person’s preferences when arranging care it would do its best to do so.

The letter then stated “However, please be advices that in regard to the matters above, the Authority is also under a duty to comply with its duties under the Equality Act and other relevant legislation” [39]. This could have been interpreted to imply that the provision of same-sex intimate care would or could breach the Equality Act. The Borough did not argue this in this case and the Tribunal accepted that same-sex care can lawfully be provided [40].

Finally, the letter stated that “there is no requirement on public bodies to collect information on legal sex … recording of [sex] would not be for Equality purposes by solely for consideration of personal preferences of intimate care being provided by biological females” [41]. VRP’s parents were very concerned about this letter and launched a legal challenge under judicial review.