Information about transgender individuals is protected under the Gender Recognition Act, Section 22 which states that:
‘It is an offence for a person who has acquired protected information in an official capacity to disclose the information to any other person.’
‘Protected information’ means information which relates to a person who has made an application under the Gender Recognition Act.
WHAT THAT MEANS
This means that you need to be very specific when dealing with managers who employ you, and officials who provide services, about what you consent to allow them to do. People in authority may not have been trained to understand this aspect of the law. However, ignorance is not a defence. It is what is called a ‘strict liability’ offence, for which there are no mitigating reasons other than the exceptions listed. The law does not just apply to word of mouth disclosure. Paperwork and computer records are significant too. Therefore officials must be careful about what they record and file about you (or what was recorded and filed in the past) so as to avoid others from seeing information which becomes protected as a result of a gender recognition application and legal recognition.
A person acquires information in an ‘official capacity’ if they are acting:
- in connection with their functions as a member of the civil service, a constable or the holder of any other public office or in connection with the functions of a local or public authority or of a voluntary organisation,
- as an employer, or prospective employer, of the person to whom the information relates or as a person employed by such an employer or prospective employer, or
- in the course of, or otherwise in connection with, the conduct of business or the supply of professional services.
It is not an offence to disclose information obtained in these circumstances if:
- the information does not enable the person to be identified, or
- that person has agreed to the disclosure of the information, or
- the person making the disclosure genuinely does not know or believe that a full gender recognition certificate has been issued, or
- the disclosure is in accordance with an order of a court or tribunal, or
- the disclosure is for the purpose of instituting proceedings before a court or tribunal, or
- the disclosure is for the purpose of preventing or investigating crime, or
- the disclosure is made to the Registrar General for England and Wales, the Registrar General for Scotland or the Registrar General for Northern Ireland, or
- the disclosure is made for the purposes of the social security system or a pension scheme, or
- the disclosure is in accordance with provisions made through regulations which the Secretary of State is permitted to make under the Act.
The law does not apply to information about a person’s gender recognition application or gender reassignment history when the information originates outside of an official setting – through social contact, for instance.
There are legitimate times when people do need to know about a trans individuals’ gender reassignment and occasions when it is beneficial that the information be disclosed. This law is there to remind officials of the responsibility of holding such sensitive information, and the potentially negative or dangerous consequences of using this information irresponsibly. The law is therefore to ensure that their private information will not be shared with anyone who does not need to know.
Section 22 of the Gender Recognition Act is also supplemented by the Data Protection Act 1998 which regulates the processing of information relating to individuals. This includes the obtaining, holding, using or disclosing of such information, and covers computerised records as well as manual filing systems and card indexes.
TAKING A PRIVACY CASE FORWARD
Taking a privacy case forward under Section 22 of the Gender Recognition Act
If you believe that someone acting in an official capacity has unlawfully disclosed details of your application for gender recognition or your gender reassignment history then you need to act promptly in order to have a chance of pressing your case; there is a six month time limit within which it can be heard in court from the date of the offence.
Breach of Section 22 of the Gender Recognition Act is dealt with by the Police and the Magistrates Court. In order for a judgement to be made in your favour the Police must collect evidence to support the charge. They will then, if appropriate, brief the Crown Prosecution Service who will decide on whether to proceed. Remember, this must take place within a narrow time limit.
If you have qualms about approaching the public desk of your local police station then look on their website for details of how to make a complaint about transphobia. Many police stations now have specially trained officers to deal with this type of complaint.