Are special customer records in line with human rights protections? (R (on the application of C) v Secretary of State for Work and Pensions)

17 Nov 2017


This article was first published on Lexis®PSL Public Law on 10 November 2017.

Public Law analysis: Whether a transgender person’s rights were breached by a government department’s retention and processing of gender data was the question before the Supreme Court in R (on the application of C) v Secretary of State for Work and Pensions. Allan Briddock, of One Pump Court, looks at the court’s decision.

Original news

R (on the application of C) v Secretary of State for Work and Pensions [2017] UKSC 72, [2017] All ER (D) 02 (Nov)

The Supreme Court dismissed the transgender person’s appeal and held that the respondent Secretary of State’s policies in the administration of the welfare benefits system when applied to people of reassigned gender were not unlawful under the Gender Recognition Act 2004 (GRA 2004), the Human Rights Act 1998 (HRA 1998) or the Equality Act 2010 (EqA 2010).

What was the background to the case?

‘The appellant’s assigned gender at birth had been male, but she underwent gender reassignment to female and obtained a gender recognition certificate under GRA 2004’. Her complaint was that her gender assigned at birth was being routinely disclosed to staff of the Department of Work and Pensions (DWP) when she attended the job centre.

The DWP has in place a special customer records (SCR) policy whereby the former gender of transgender DWP customers is by default protected by an extra layer of protection and front-line staff do not have access to the information on the DWP’s computer system. However, access to where the information is stored is required for even routine inputs by staff, such as a change of address. In addition, the extra layer of protection routinely causes delays, including with payments.

Although the extra protection is not exclusively for transgender customers, the majority who are protected by it are transgender, and DWP staff are able to reliably infer that a customer is transgender when they see the higher level of security is deployed.

The appellant did not wish her gender assigned at birth, or her former name and other details, to be known to staff and she had high levels of anxiety about it being disclosed and concerns for her safety. On several occasions, she overheard DWP staff discussing in open-plan offices the fact that she was transgender.

What issues arose for the court’s consideration?

The case before the Supreme Court was whether SCR policy was compatible with GRA 2004, HRA 1998, or EqA 2010. GRA 2004

It was the appellant’s case that the policy and DWP processes were not compatible with GRA 2004, s 22(1), which created a criminal offence ‘for a person who has acquired protected information in an official capacity to disclose that information to any other person’. Under GRA 2004, s 22(2)(b), ‘protected information’ includes information which ‘concerns the person’s gender before it becomes the acquired gender’. GRA 2004, s 9 provides that once a GRC is issued that person ‘becomes for all purposes the acquired gender’. The appellant argued that the DWP’s policies and processes breached these statutory requirements.

HRA 1998

In relation to HRA 1998, the appellant contended that the SCR policy and processes could not be justified as a legitimate aim and, in any event, were a disproportionate breach of her right to privacy and dignity, and therefore incompatible with her rights under Article 8 of the European Convention on Human Rights.

EqA 2010

Closely connected to the Article 8 of the European Convention on Human Rights arguments under HRA 1998 were the claims under the EqA 2010, namely that the appellant was directly and indirectly discriminated against due to being transgender. Direct discrimination was said to have occurred as transgender customers were treated the same as other customers on the DWP’s database and EqA 2010 required they be treated differently, if necessary, to avoid
discrimination. The indirect discrimination point was put on the basis that transgender customers were, as a result of the

SCR policy and processes, disadvantaged when compared with the other customers.

What did the court decide, and why?

The Supreme Court dismissed the appeal on all grounds and Lady Hale gave the only judgment.

GRA 2004

Lady Hale found the SCR policy and the processes were not incompatible with GRA 2004, and GRA 2004, s 9 clearly contemplated a change in the state of affairs before the GRC was issued. The person was of one gender and after the GRC was issued the person became a person of another gender. Lady Hale found GRA 2004, s 9 catered for the effect of that change. She also found there was nothing in GRA 2004, s 9 to require that ‘the previous state of affairs be expunged from the records of officialdom’.

HRA 1998

In relation to the claim under HRA 1998, she found there was a legitimate aim, namely to calculate entitlement of pensions, which differed for men and women, and to protect against fraud. Although she found the disclosure of the information was a breach of the appellant’s right to privacy under Article 8 of the European Convention on Human Rights (ECHR), she concluded the breach was justified by the legitimate aim as it would not be possible to have a different system without inordinate expense and, further, the DWP had taken steps to protect the information.

EqA 2010

The court dismissed the direct discrimination claim on the basis that transgender customers were, in fact, treated differently, in a way which supported their needs, from other customers on the DWP’s database. Regarding the indirect discrimination claim, the court found that although transgender customers would feel a greater need to protect their information than others who had changed their details, for example on marriage or divorce, as gender reassignment changed a person’s identity more profoundly, discrimination was justified as a proportionate means of achieving a legitimate aim.

What is the significance of the case and are there any unresolved issues practitioners will need to watch out for?

The case was on a very narrow issue. However, transgender issues generally have been much more in the public consciousness in recent years, as have the many associated legal issues.

There are significant problems with GRA 2004, perhaps one of the largest is the reluctance of transgender persons to obtain a certificate at all due to the medicalisation of their gender, secret panels, and spousal veto—to name but a few. The right under GRA 2004 to protected information is only available if a person has obtained a certificate. Even for those who have obtained a certificate, breaches of their protected information by public officials is of particular concern, especially for those who come into the prison estate, mental health detention, the armed forces etc.

Although the Supreme Court found in this case that the DWP’s policies and procedures were compatible with GRA 2004, HRA 1998 and EqA 2010, it was a very specific issue and the evidence before the court was that the DWP had changed its polices and systems in response to complaints by the appellant, and any further changes would be of inordinate expense and effort. For that reason, I would say the case is quite fact-specific and not necessarily an indication of how the courts will rule in other protected information cases.

However, the court did emphasise the importance of the protected characteristic of gender reassignment under EqA 2010 and under Article 8 ECHR, generally. When the case was before the Court of Appeal, the court was ambiguous about whether Article 8 ECHR was engaged at all and did not give much weight to the complaints made by the appellant. Although the appeal was dismissed, the case does show a welcome confirmation by the Supreme Court that gender identity and gender reassignment need to be properly protected, and the court recognised the significant impact of the appellant’s former gender and details being disclosed.

How does the decision fit in with other developments in this area of law?

Sticking to the development of transgender rights (as opposed to human rights and discrimination generally), the case is another in a series of setbacks for transgender equality. There have been well-publicised transgender family cases this year—one where the mother of a transgender child was denied any access to her child as the father did not believe the

child was transgender and another where a transgender woman was denied all access to her children due to the fact the children would be ostracised by their ultra-religious community if their father (who was a transgender woman) had contact with them. In July 2017, the government announced a consultation to effect change to GRA 2004 which is welcome and ongoing.

What are the implications for practitioners? Particularly, what will be the effect of the judgment on the policies of public bodies when dealing with gender data?

I think this judgment will provide comfort to the public bodies dealing with gender data but perhaps false comfort in certain cases. In this case, the DWP did in fact take steps to ensure the information was protected in response to the appellant’s complaints. Not all public bodies are as accommodating and this case may embolden them into a false belief that the courts will rule in their favour in future cases. On a proper reading of the case, it serves as a reminder to public bodies that they need to take their duties, under GRA 2004 and EqA 2010, extremely seriously and a finding in a future case that any breach is not incompatible with GRA 2004 or is proportionate is far from guaranteed.

Interviewed by Robert Matthews.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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