Review of the Gender Recognition Act 2004: consultation analysis

5. Other aspects of the 2004 Act

Privacy issues

5.1. The consultation paper explains that section 22 of the 2004 Act makes it an offence for a person who has acquired ‘protected information’ in an official capacity to disclose that information. Protected information is information about a person’s application for recognition in their acquired gender under the 2004 Act or about a successful applicant’s gender before it became the acquired gender. Exceptions include where disclosure of protected information is made for the purposes of crime prevention or detection, the social security system or pensions, or for the purpose of instituting court proceedings or otherwise for the purposes of court proceedings.

5.2. Scottish Ministers have made an order under section 22 for additional exceptions in relation to devolved matters, and these are listed in section 6.04 of the consultation paper. When the UK Parliament’s Women and Equality Committee took evidence on trans equality, it was argued that the exemption for protected information to be disclosed in court proceedings was being misused and that exemptions in secondary legislation allowing disclosure to certain medical professionals required extension to psychologists.

5.3. Since data protection is reserved, changes in the effect of section 22 are matters that the Scottish Government may need to discuss with the UK Government.

Question 10 - Are any changes to section 22 (prohibition on disclosure of information) necessary?

Chart 10: Question 10

5.4. A majority of respondents, 52% of those answering the question, did not know whether any changes to section 22 are necessary. Of the remaining respondents, 33% thought no changes are necessary and 15% thought changes are necessary. The pattern of response was similar for Scotland, the rest of the UK and the rest of the world.

5.5. Around 1,910 respondents went on to make a further comment at Question 10.

Comments by those who did not know

5.6. Around 290 respondents who did not know made a further comment, albeit these comments tended to be brief.

5.7. The most frequently made point was that they did not have sufficient knowledge or information to have a view on this question, or that they did not understand the question. Around 3 in 10 respondents made a comment of this type, while a smaller number restated their opposition to self-declaration.

5.8. Otherwise points made, in each case by smaller numbers of respondents, reflected the range of issues set out in the consultation paper and as set out above. Noting that data protection issues are reserved to Westminster, an Other Group respondent suggested that the current Data Protection Bill^[10] is likely to be the most appropriate instrument to cover issues addressed at this question.

Comments by those who thought no changes are necessary

5.9. Around 250 respondents who did not advocate changes went on to make a further comment. The most frequently made comment was that the individual’s right to privacy should be paramount and that it is for the individual to disclose their trans status or consent to disclosure. Around 4 in 10 respondents raised this issue, while around 1 in 3 respondents suggested that the existing exemptions are adequate. Two Union or Political Party respondents noted that section 22 prohibitions can apply to their representatives when supporting trans members, and that this has not caused difficulties.

5.10. Other frequently raised issues, each highlighted by around 1 in 7 respondents were that:

• Adding additional exemptions may undermine the current protections. A Trans Group and an LGBT Group respondent suggested that additional exemptions could contravene Article 8 of the European Convention on Human Rights on the right to a private life
• Provisions with respect to crime prevention, detection or recording are important and should remain.

5.11. An Other Group respondent highlighted that, although the 2004 Act makes it a criminal offence to disclose a person’s gender reassignment history, Companies House record and display information about a director’s previous name. This is done to fulfil requirements under the Companies Act 2006 but also reveals the individual’s history of transition and is covered by exemption under section 22. They recommended that a new system is created that ensures protection from fraud without outing people.

5.12. Other points, in each case made by smaller numbers of respondents, included:

• References to the importance of disclosure on medical grounds
• Comments on the importance of safeguards to protect vulnerable people. Respondents making this type of point sometimes also indicated their general opposition to self-declaration.

5.13. A small number of other respondents identified exemptions they would like to see added or removed, with the most frequent of these being the removal of the exemption ‘for the purpose of enabling a person to decide on the admission or appointment of the subject as a minister of religion’. A Religious Body or Group respondent, however, recorded their strong support for this exemption arguing it is essential to the free exercise of religion for many of their members.

5.14. There were few additional points made by those who felt no change to be needed, although an LGBT Group respondent did suggest that more extensive guidance on the exemptions should be provided. They noted that questions around disclosing protected information often arise when they provide training or policy support for other organisations. They suggested that professional people may find it difficult to recognise the impact on individuals of having their information shared when it is not required.

Comments by those who thought there should be changes

5.15. Around 1,340 respondents who thought changes are required went on to make a further comment.

5.16. In some cases, respondents interpreted the exemptions listed in section 6.04 of the consultation paper as proposed additions to section 22 of the Act, noting their agreement with particular clauses. This does mean that support for changes recorded at the Yes/No element of the question may be slightly inflated.

5.17. Respondents also suggested both categories that should be removed from the existing list and circumstances for which they felt further exemptions should be added.

Additional exemptions proposed

5.18. The most frequent suggestion, made by around 1 in 5 respondents, was that there should be an additional requirement for disclosure with respect to access to women only spaces, sports, shortlists or employment quotas, with some respondents specifically referencing existing sex-based protections under the Equality Act 2010. In some cases, respondents suggested a general exemption should apply to access to protected spaces, in others that it should be more specific to an individual’s history: for example, while any access to a refuge was cited by some respondents, others argued that a refuge should be informed if the holder of a GRC had a history of sexual violence. Respondents making these points sometimes also suggested that it should not be an offence to ask for proof of status or to see a GRC.

5.19. There were also suggestions, made by smaller numbers of respondents, that there should be much wider disclosure of trans status or that this should not be protected information at all but should be publicly available. Suggestions of particular circumstances where disclosure should be required included: to an employer for specific types of employment (such as undertaking intimate medical procedures); to a spouse or civil partner; for individuals convicted of sexual offences; and for collection of statistical information (particularly with respect to crime and for medical purposes).

5.20. With respect to the findings from the UK Parliament’s Women and Equalities Committee, smaller numbers of respondents indicated specific agreement that exemptions allowing disclosure to certain medical professionals should be extended to psychologists or that action to avoid disclosure in court proceedings from being misused would be appropriate. Some of those respondents who approved disclosure to psychologists also suggested wider extension to other medical professionals.

Removal of exemptions proposed

5.21. Around 1 in 7 respondents suggested that one or more of the exemptions listed in the consultation paper should be removed. Most frequently suggested for removal, by around 1 in 8 respondents, was that relating to appointment of a minister of religion. Amongst arguments made for such a course of action was that it is a breach of the Equality Act 2010 to discriminate against trans people in employment, and this exemption could facilitate such discrimination.

5.22. Smaller numbers of respondents argued for removal of disclosure that is:

• Made by or on behalf of a credit reference agency and that discloses information contained in an order of a court or tribunal
• Made in relation to one of a specified group of bankruptcy or insolvency officeholders in order for them to perform their functions.

5.23. In both instances it was argued that an individual’s legal gender has no bearing on financial matters and, in the majority of cases, respondents who objected to one exemption objected to both.

5.24. Although only small numbers of respondents specifically suggested removal of the other exemptions added to section 22 by the Scottish Government in the Gender Recognition (Disclosure of Information) (Scotland) Order 2005, others suggested: that the 2005 Order should be repealed; that all exemptions should be removed; or that disclosure of trans status should only ever be with the consent of the individual concerned. A small number of respondents argued in favour of disclosure only for medical purposes, only for criminal or legal purposes, or for both of these.

5.25. Around 1 in 10 respondents proposed tightening of the criteria surrounding existing exemptions – for example that disclosure should only be acceptable when relevant to a particular medical condition or to a specific court case, while a smaller number argued for stricter enforcement of the rules regarding disclosure, that there should be greater clarity regarding the consequences for those who make illegal disclosures, or that it should be easier for trans people to bring cases against those who disclose their information illegally. A Trans Group respondent noted their understanding that there have been no cases where section 22 has been used, suggesting this to be both because there is no requirement for the person affected to be informed of a breach of their privacy, and because it falls to the trans person to raise legal action.

Other comments

5.26. Reform to section 22(4)(c) was proposed by a Trans Group, which argued that a loophole allowing protected information to be disclosed if a person’s GRC status is unknown should be closed, so that disclosure of someone’s protected information is an offence, regardless of perceived certificate status. Issues concerning access to the Gender Recognition Register^[11] were also raised by another Trans Group respondent.

5.27. A Union or Political Party respondent suggested guidance is needed, particularly for educational establishments. The need to have clear policies and access to professional learning about prohibitions on disclosing information was highlighted, especially for a teacher or lecturer taking on pastoral care or ‘named person’ duties or roles.

Recognition in Scotland of a person whose acquired gender has been recognised under foreign law

5.28. The consultation paper explains the Scottish Government’s position that Scotland should, in future, grant automatic recognition in Scotland where a person’s acquired gender has been legally recognised in another country, including elsewhere in the UK. It also notes that this could be subject to a public policy exception whereby recognition could be refused if there were serious concerns either about the process by which the person obtained legal gender recognition or in relation to a specific case. In the event of a dispute, an application could be made to the Scottish courts to determine the matter.

Question 11 - Should a person who has been recognised in their acquired gender under the law of another jurisdiction be automatically recognised in Scotland without having to make an application?

Chart 11: Question 11

5.29. A majority of respondents, 67% of those answering the question, thought that a person who has been recognised in their acquired gender under the law of another jurisdiction should be automatically recognised in Scotland without having to make an application. Of the remaining respondents, 26% thought they should not be recognised automatically and 7% did not know. Respondents resident in Scotland and the rest of the world were more likely to think they should be automatically recognised and those resident in the rest of the UK less likely.

5.30. Around 1,740 respondents made a further comment at Question 11.

Comments by those thinking recognition should be automatic

5.31. Around 800 respondents who thought that people should be automatically recognised went on to make a further comment.

5.32. The most frequently made comment was that individuals should not need to reapply when their gender has already been recognised elsewhere. Around 1 in 3 respondents raised this issue. Around 3 in 10 stated their general agreement, sometimes suggesting this to be a fair or common-sense approach, or to reduce the administrative burden. A small number of respondents suggested that there could or should be only a very simple, fast-track application process, sometimes adding that this should be nothing more than confirmation or notification of status.

5.33. The potentially harmful effects on an individual if required to reapply for legal recognition already obtained elsewhere were also highlighted. It was suggested that the process of gender recognition may be both stressful and expensive, and that it would be unwelcoming, distressing or contrary to an individual’s human rights to require a second process to be completed. This type of issue was raised by around 1 in 5 respondents. A small number of respondents suggested that other people arriving in Scotland are not required to prove their gender, so trans people should not have to do so either.

5.34. Smaller numbers of respondents:

• Suggested that the approach proposed by the Scottish Government would be simple, efficient or cost-effective from an administrative point of view
• Argued that automatic recognition would be analogous to the way that other events such as marriage, divorce, adoption or a change of name that take place in other jurisdictions are accepted in Scotland
• Referred to self-declaration of gender as being in line with international best practice and suggested that granting automatic recognition would be consistent with this. A small number of respondents specifically referenced the systems in place in Malta and Ireland. A Trans Group and an LGBT Group respondent also noted that the need for the current overseas track would effectively be removed.

5.35. Comments on the principle of a public policy exception as set out in the consultation paper were made by only a small number of respondents, but those who did express a view indicated their agreement. A Trans Group respondent argued that examination of any exceptions must be rigorous to allay concerns about the process of gender acquisition in another jurisdiction. An Other Group respondent suggested that a list of recognised authorities may be helpful to ensure that the process in other jurisdictions is considered appropriate for recognition in Scotland. However, other respondents suggested that, if Scotland adopts self-declaration, it is unlikely that other jurisdictions would have a less rigorous systems and such scrutiny would not be needed.

5.36. It was also noted that a public policy exception is a standard provision in the context of international private law, acting as a safeguard in circumstances such as where a person has been inappropriately attributed an acquired gender.

5.37. A small number of respondents who had agreed with automatic recognition added caveats to their answer, including that:

• They did not approve of recognition granted under a self-declaration system, or without criteria equivalent to the requirements of the 2004 Act
• Criteria from another jurisdiction must be equivalent to or at least as stringent as those in place in Scotland
• Evidence of an individual’s legal gender recognition must be available
• Reciprocal arrangements should be in place.

5.38. Finally, equivalent recognition of non-binary individuals was also proposed, although again by only a small number of respondents.

Comments by those who did not think recognition should not be automatic

5.39. Around 775 respondents who did not think people should be automatically recognised went on to make a further comment.

5.40. Around 1 in 4 respondents suggested that other countries may have legal systems or gender recognition systems that are either of unknown rigour or are less robust than those in place in Scotland and that this is a reason for not granting automatic recognition. In connected points respondents argued that:

• Other jurisdictions must have comparable or more robust criteria for gender recognition to those in place in Scotland for automatic recognition to be granted. Around 1 in 6 respondents made this point.
• The laws of other countries cannot be allowed to determine decisions made in Scotland, or that anyone living in Scotland must be subject to Scottish law. It was also suggested to be inconsistent to recognise one law made in another country but not others. Around 1 in 7 respondents made these points, while the need for everyone awarded a GRC in Scotland to have gone through the same process was suggested by a small number of respondents.

5.41. The importance of making an application that can be assessed and verified was highlighted by around 1 in 8 respondents. The majority of these respondents thought that a new application should be necessary in all cases, although sometimes that the process could be simplified or separate from the standard application system. While some respondents suggested that documentary evidence or proof of status could be required, others noted that verifying evidence from other jurisdictions could be very difficult. A small number of respondents expressed a view that reapplication should be necessary where legal transgender status has been granted under a self-declaration system, or that their view would depend on whether Scotland goes ahead with proposals for self-declaration.

5.42. Around 1 in 7 respondents raised concerns surrounding the risk of harm to women and girls, sometimes reiterating views on the shortcomings of the proposed self-declaration as expressed at earlier questions, while around 1 in 8 stated their opposition to the concept of changing sex or the proposals for self-declaration. Respondents from outside Scotland were more likely to make the latter points. A smaller number of other respondents pointed to the potential for abuse.

Comments by those who did not know

5.43. Around 160 respondents said they did not know whether there should be automatic recognition in Scotland of a gender legally recognised elsewhere and then went on to make a further comment. Points raised included:

• Around 3 in 10 suggested that this should be dependent on the jurisdiction in question and the regulatory system in place
• Around 1 in 4 argued that the system must be broadly comparable to, or more robust than, that in place in Scotland
• Around 1 in 5 restated their opposition to the concept of changing gender or the proposals for self-declaration.