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On 1 November 2017, the Supreme Court unanimously dismissed the appeal in R (C) v headshotSecretary of State for Work and Pensions [2017] UKSC 72, relating to whether, in the context of awarding Jobseeker’s Allowance (‘JSA’), the State unjustifiably interfered with the right of transgender persons to have information about their gender reassignment kept private.

Background

The Department for Work and Pensions (‘the respondent’) retains details of the identity of all its customers, including any former gender information, for fraud prevention and pension calculation (‘the Retention policy’). The respondent operated a policy of enhanced security for certain categories of customers, which was routinely applied to transgender customers unless they requested otherwise (‘the SCR policy’).

The appellant is a transgender woman who transitioned from male to female in 2003. She obtained a Gender Recognition Certificate in March 2006, which was automatically notified to the respondent. She receives JSA and attends fortnightly appointments at her local job centre. Her transgender status became known to staff and other customers at the centre, causing her distress and humiliation, and also resulted in delays in the payment of her JSA.

In the High Court, Simon J [2014] WECH 2403 (Admin) made a declaration that the Retention policy was incompatible with the appellant’s ECHR, art 8 rights because it was not “clear and accessible”. The policy was then clarified, and her appeal to the Court of Appeal ([2016] EWCA Civ 47) was dismissed on all other grounds. The issues raised below are discussed here.

Supreme Court Judgment

Lady Hale, with whom Lord Kerr, Lord Wilson, Lord Carnwath and Lord Hughes agreed, gave the leading judgment.

The Gender Recognition Act 2004

s 9 does not require that the previous state of affairs be expunged from the records. The reference to ‘becomes for all purposes’ the acquired gender clearly contemplates a change, and the following sections are designed to cater for the effect of that change and provide additional protection [23]-[25]. Therefore the policies are not inconsistent with the GRA [26].

The Human Rights Act 1998

The policies constitute a serious interference with the rights of the appellant, and all people who have undergone gender reassignment, to respect for their private lives [31]. Pension calculation and fraud prevention are legitimate aims, which are rationally connected to the policies, so the real question is whether they are proportionate [35].

In carrying out the balancing exercise, it is relevant that only rarely will frontline staff discover the historic information and the DWP has engaged with the appellant to cater for her concerns. It is no simple matter to modify complex existing systems in a way which will not compromise their efficiency and effectiveness. It is not for this court to administer the benefits system and the courts must place weight on the judgments of the experts in administration [36].

The Retention policy cannot be considered in isolation from the SCR policy, both of which provide a proportionate means of achieving the legitimate aims identified [37].

Discrimination

The principle in Thlimennos v Greece requires unlike cases to be treated differently [40]. The policies do treat transgender customers differently from others because, for those who want it, the SCR policy applies [41]. Transgender customers are not treated less favourably as there is no difference in treatment from others who change their name or title [42]. Therefore, there is no direct discrimination [43].

Nor are the policies indirectly discriminatory. The SCR policy is a proportionate means of achieving a legitimate aim for the purpose of the Equality Act 2010, s 19(2)(d) and, for the same reasons, any discrimination involved in the policies is justified for the purpose of ECHR, art 14 [44].

The allegation that the SCR policy creates a “harassing environment” contrary to EA 2010, s 26, raised for the first time in this court, also fails. A more appropriate forum would be a substantive claim under the EA rather than a judicial review of the policies which are designed to protect the dignity of transgender customers [45].

Comment

Despite the outcome of this appeal, the judgment is nonetheless important for its robust recognition of transgender rights. Lady Hale’s powerful opening paragraph highlights the “centrality” of gender in any individual’s sense of self and she laments that genuine equality between the sexes is still a work in progress. She emphasises that gender dysphoria is “completely different” and most of us “can scarcely begin to understand how it must be to grow up in the wrong body”.

These observations, and Lady Hale’s pointed references to the new system being developed for Universal Credit (at [37] and [46]), suggest that future policies may be subject to even closer scrutiny. The respondent’s close engagement with the appellant in this case was central to the court’s reasoning. The government will need to ensure, particularly in its roll out of Universal Credit, that its policies cater for the specific difficulties faced by transgender people.

The judgment is also noteworthy for Lady Hale’s observations about the treatment of, and interplay between, certain rights under the ECHR. Rather than rejecting the appellant’s reliance on art 3 outright, she considered that art 3 cases could serve to underline the importance of the art 8 interests at stake (see [31]). This highlights the useful illustrative role cases on different rights may be able to play to ensure cohesive protection under the ECHR.

She also observed that “justification for an interference with the article 8 right is not invariably justification for discrimination under article 14” [44]. Different, and perhaps stronger, reasons may be required to justify discriminatory treatment. The government will need appropriately nuanced reasons for interference with each right, particularly in the specific context of the rights of transgender people.