Transgender individuals: information governance and the Equality Act 2010

Published 29 September 2022

It has been estimated that there are around 500,000 transgender people within the UK. The law and guidance that relates to the provision of services to transgender people can be complex and is rapidly evolving, and it is imperative that charities understand their legal obligations. Failure to do so presents reputational risk, as well as the risk of legal claims.

In this briefing, we provide an overview of the key legislation and guidance, and in particular, information governance obligations and duties under the Equality Act 2010.

The legislative framework

There are a couple of key pieces of legislation that are relevant when considering information governance and equalities issues in relation to transgender individuals:

• The Gender Recognition Act 2004 (GRA) allows individuals to obtain a Gender Recognition Certificate (GRC) where the individual:
  • has gender dysphoria/gender incongruence;
  • has spent at least 2 years living in the acquired gender; and
  • intends to live in the acquired gender until death.

Obtaining a GRC means that the gender with which the person identifies becomes their legal gender for all intents and purposes. However, it should be noted that there is no obligation to obtain a GRC: most transgender individuals who have transitioned do not have one; and

• The Equality Act 2010 makes it unlawful to discriminate on the basis of “protected characteristics”, including gender reassignment, sex and philosophical beliefs (including “gender critical” beliefs - Forstater v CGD Europe). What the Equality Act 2010 requires in any given situation will depend on all the circumstances.

Information governance

The GRA makes it a criminal offence to disclose ‘protected information’ when acquired in an official capacity (which would include information acquired by a charity). ‘Protected information’ includes:

• Information regarding the GRC application; and
• If the GRC application is granted, anything about that person’s previous gender.

In addition, the processing of personal data (i.e. information about a living individual) is governed by the Data Protection Act 2018 and UK General Data Protection Regulation (GDPR).  This legislation requires organisations to ensure personal data is accurate and up-to-date. As such, where a charity is providing services to those who have, or are, transitioning, or where someone asks for their name and/or gender to be changed, this request should be facilitated where possible. This is particularly important given that the individual may hold a GRC and it is a criminal offence to disclose anything regarding their previous gender.

We are conscious that in some cases, retaining information relating to an individual’s  previous gender may be necessary or helpful in order for the charity to provide effective support. Where this is the case, we would suggest that this is discussed with the individual in question and their consent is obtained and recorded. Where agreement cannot be reached, and retaining the information is critical, we recommend that legal advice is obtained.

Equalities issues

The Equality Act 2010 makes it unlawful for service providers and those carrying out public functions to discriminate against someone on the basis of one or more “protected characteristic”. A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has 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. There is no need to have a certificate, undergo any treatment or be under medical supervision to fall within this protected group, although the person must be at least proposing to undergo “a process or part of a process”.

There are various types of unlawful discrimination and prohibited conduct under the Equality Act. These include that you must not:

• Treat someone less favourably than you treat others because of one or more protected characteristic (direct discrimination);
• Apply a provision, criterion or practice that puts people with a protected characteristic at a particular disadvantage compared to those without that characteristic, unless it is justified as a proportionate means of achieving a legitimate aim (indirect discrimination). This underscores that equal treatment doesn’t always mean the same treatment;
• Engage in unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. For example, mis-gendering a trans person (i.e. using the wrong pronoun or name) could amount to harassment under the Equality Act, depending on the circumstances, as could sharing that a service user is transgender without their consent (harassment);
• Subject someone to a detriment because they’ve done or you think they’ve done or may do a “protected act”, including bringing a claim or making allegations under the Equality Act (victimisation).

It is vital that charities understand these prohibitions and the legal framework, including the nature and extent of the exceptions available under the Equality Act.  Charities should also be aware of the specific exemptions in section 193 of the Equality Act relating to charities.  This exception apples where a charity provides benefits exclusively to people with a particular protected characteristic if this is in line with their governing instrument and is either objectively justified or to prevent or compensate for disadvantage.  A range of other fact specific exceptions are set out in the Schedules to the Equality Act, for example in relation to schools, sports and separate and single sex services.

While some guidance on the exemptions has been published by the EHRC, which can be a useful resource, this should not be relied on in isolation; if seeking to rely on an exemption there’s no substitute for working through the specific requirements of the Equality Act.

Conclusion

Although all cases will be very fact specific, some high level practical tips for complying with the legislation described above include:

• Accommodate any requests for name and/or gender to be changed, so far as possible, document your decision-making, and keep an open dialogue with the individual in question.

• Review policies and practices regularly, carry out equalities impact assessments before implementing a new policy or practice affecting what or how services are provided, ensure staff receive regular training and if in doubt seek legal advice.

The above steps should assist charities that provide services to the public, including transgender individuals, to do so lawfully and mitigate the reputational and legal risks of getting it wrong. The legal frameworks described above will have implications for a vast variety of situations and require fact sensitive analyses. Our team will be happy to discuss how the law applies and what this means for your charity in any given case.