Held, claim dismissed. (1) The duty imposed by regulation 45 of the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 was not an absolute duty to achieve the standard of 92% of the cohort commencing treatment within 18 weeks, but rather, on its face, was simply a “target duty” requiring the defendant to “make arrangements” to ensure that the standard was met. The standard applied to the cohort, and not to individuals, and thus it would be possible to comply with it even though particular individuals had been waiting more than 18 weeks for treatment, or indeed, given that the cohort comprised of all patients referred to the services under the defendant’s responsibility, even if even if no child or adult referred for gender identity services were treated within 18 weeks. The regulation did not regard failure to achieve the 18-week standard, without more, as a breach of the duty. Instead, the legislative scheme provided bespoke remedies for individuals whose treatment did not commence within 18 weeks (paras 86, 91, 92, 93, 94, 99, 102).

(2) While section 3B of the National Health Service Act 2006 likewise imposed only a “target duty”, the court could intervene if the arrangements being made to discharge that duty were not rationally capable of doing so. However, notwithstanding the serious effects of long waiting times on the first two claimants, there had been no breach of the duty under section 3B with regard to the commissioning of services in circumstances where (i) the arrangements made by the NHS, in the first instance by the preparation of the current Service Specification document, required the contractor to adhere to the 18-week waiting time, (ii) the defendant’s failure to exercise contractual remedies against the clinic could not be considered irrational where the main cause of the delay was the lack of trained clinical staff, (iii) while children’s GID services were in many cases time critical, it was not suggested that a consultation at the clinic was useless after puberty had begun and, while its potential utility for some patients might have decreased as the waiting time increased, that was true of a great number of NHS services, (iv) having recognised that the model needed to be changed, the defendant had embarked on new arrangements for the delivery of the children’s GIDS, and (v) the defendant expected those new arrangements to bring down waiting times substantially, albeit not immediately. Against this background, the defendant’s failure to reduce the long waiting times endured by children waiting for referral to the children’s GIDS at the clinic did not breach section 3B of the 2006 Act (paras 105, 108–110).

(3) The duty imposed on the defendant by section 2 of the Health Act 2009 was a duty, in performing its health service functions, to have regard to the NHS Constitution, which itself referred to rights as set out in the supplementary Handbook which, in turn, set out the rights found in Part 9 of the 2012 Regulations. It followed that the NHS Constitution did not impose duties additional to those in Part 9 of the 2012 Regulations and thus, where the defendant had complied with its duties under that Part, a breach of the duty to have regard to the NHS Constitution could not separately justify relief. Where the defendant's evidence made clear that it was well aware that the 18-week waiting times were not being met, and was taking action to address the problem, that was sufficient to discharge its duty to “have regard” to the NHS Constitution (paras 115–116).

(4) In so far as section 7 of the Equality Act 2010 conferred the protected characteristic of gender reassignment on a person who proposed to undergo, was undergoing or had 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”, that process would not necessarily be a medical one but might involve changing non-physiological aspects of sex, such as the person’s name and/or how they dressed, or wore their hair, or spoke or acted, or acted. The reference to “a process” reflected the fact that trans people could give effect to their gender identity in a variety of ways. Some would embark on a process which they intended would include hormone treatment and surgery, or other forms of medical intervention, as well as changing some of the non-physiological aspects of gender, while others might decide, on reflection, that they only wished to make some of those changes. By including a reference to “part of a process”, section 7 ensured that all such individuals were protected by the 2010 Act. Moreover, the reference to those who were “proposing to undergo” such a process indicated that the protection was to begin to start before the process had started, all that was requiring being that the person proposed to undergo at least a part of such a process. While a passing whim would not do, nor was an intention required that the change should be permanent. Accordingly, while not every child referred to the children’s GID service would have the protected characteristic of gender reassignment, there was no reason of principle why a child could not satisfy the definition in section 7 of the 2010 Act, provided that they had taken a settled decision to adopt some aspect of the identity of the other gender. Determining whether any particular child had the protected characteristic of gender reassignment would involve a case-specific factual assessment. On the facts of the present case, both the first and second claimant clearly satisfied the definition in section 7(1) of the 2010 Act and thus had the protected characteristic of gender reassignment. It being common grounds that the third and fourth claimants also had that protected characteristic, it was necessary to consider whether the claimants had been subject to direct or indirect discrimination (paras 129–136).

(5) The differences between the claimants (who were seeking children’s and adults’ GID services) and the comparators upon which they relied for the purposes of their discrimination claim (those seeking other specialist services) were relevant to the detriment complained of, namely long waiting times. However, those waiting times were caused by a combination of (i) the marked increase in demand for these services in the five years up to 2017, (ii) the clinical controversy surrounding GID treatment, (iii) the difficulty, across both children’s and adults’ services, of recruiting and retaining sufficient clinical specialists, despite the availability of funding for them and (iv) the need, in the light of the foregoing matters, to redesign the commissioning model. There being no evidence that any other specialist service had that particular combination of features, it followed that comparing those referred to GID services with those referred to other specialist services would not be comparing like with like. Further, had there been evidence that the long waiting times for GID services were the result of a decision about the allocation of resources, which was related to the shared protected characteristic of many services users (gender reassignment), a direct discrimination claim would have succeeded, but in the present case the evidence showed, on the contrary, that the long waiting times had increased despite the defendant’s willingness to increase very substantially the resources available for that service area. It followed that the claimants had not established that the defendant had treated them, because of their protected characteristic of gender reassignment, less favourably than they treated or would treat others, and the direct discrimination claim therefore failed. Nor could there be a claim of indirect discrimination because, by section 19(2)(a) of the 2010 Act, that would required that provisions, criteria or practices were applied to persons with whom the claimants did not share their protected characteristic, whereas, on the contrary, the only patients to whom the identified arrangements were applied to were those suffering from gender dysphoria, and not patients suffering from other conditions (paras 144, 145, 147, 148, 151, 152).

(6) The court having found that the waiting lists did not give rise to direct or indirect discrimination, the defendant could not be in breach of section 149(1)(a) of the 2010 Act by failing to have regard to the need to eliminate discrimination. However, section 149(1)(b) and (c), concerning the advancement of equality of opportunity and fostering good relations, could apply even in situations where there was no discrimination, and the long waiting times had the potential to affect both equality of opportunity and good relations between those who share the protected characteristic of gender reassignment and those who did not. Nonetheless, in light of the interim report commissioned by the defendant and the decision to accept its recommendations, it was not possible to conclude that the defendant had failed to inform itself of the effects of long waiting times on those with the protected characteristic of gender reassignment and, against that background, the defendant had complied in substance with its duty to have due regard to the need to advance equality of opportunity and foster good relations between trans people and others in the exercise of its functions with respect of children’s GID services. The position with regard to adult GID services was, if anything, even clearer, it being clear from the defendant's evidence as a whole that it considered the action being taken would improve the position of those with the protected characteristic of gender reassignment. It followed that the defendant had complied in substance with the section 149 duty (paras 166, 170, 172, 173).