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The NHS must offer transgender patients awaiting transitioning treatment access to fertility services or it risks breaking the law, the health service has been warned by the country’s equality watchdog.

The Equality and Human Rights Commission (EHRC) is threatening legal action if “outdated” NHS policies, which it says discriminate against the transgender community, are not changed urgently.

On Friday, the watchdog sent a pre-action letter, the first step towards judicial review proceedings, to NHS England, the organisation that runs England’s health service, accusing it of failing to provide standard fertility services to transgender patients before they undergo treatment for “gender dysphoria” – the condition where a person experiences discomfort or distress because of a mismatch between their biological sex and gender identity.

At a time when the provision of fertility services is being curtailed in many parts of the UK, the intervention by the watchdog will trigger a number of financial, ethical and legal questions and place it on a collision course with NHS England, which last night claimed the action was misplaced.

“Decisions on which services are commissioned by NHS England are taken by ministers based on advice from an independently chaired panel of health experts and patient representatives, using a process set out in primary legislation,” a spokesman said.

But Rebecca Hilsenrath, the chief executive of the EHRC, which is independent of, but funded by, the government, insisted that its actions were consistent with its statutory remit to promote and protect equality.

“Our laws and our values protect those who seek treatment for gender dysphoria,” Hilsenrath said. “This means that, where appropriate, treatment should be made available in order to ensure that access to health services is free of discrimination. A choice between treatment for gender dysphoria and the chance to start a family is not a real choice. We have asked NHS England to reflect on the true breadth of their statutory mandate and the impact on the transgender community of these outdated policies.”

The removal and storage of eggs and sperm – a process known as gamete extraction – gives transgender people the option of having their own biological children after transitioning treatment. For many, treatment begins in their teens, when decisions about whether they want to have a family may be far from their minds.

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