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In July 2017, the Supreme Court (sitting in a panel comprising Lady Hale, Lord Kerr, Lordheadshot Wilson, Lord Carnwath and Lord Hughes) heard this appeal relating to whether, in the context of awarding Jobseeker’s Allowance, the State unjustifiably interfered with the right of transgender persons to have information about their gender reassignment kept private.

Background

The respondent Department for Work and Pensions 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 records, including those of transgender customers, where disclosure may result in substantial distress or harm (‘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 case is 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 Court of Appeal

In the Court of Appeal ([2016] EWCA Civ 47), the appellant argued that the policies were unnecessarily intrusive and that the SCR policy was discriminatory on grounds of gender reassignment [28].

Elias LJ (with whom Patten LJ and Black LJ agreed) dismissed the appeal on all grounds.

ECHR, art 8: The Retention policy

While the information was highly personal and sensitive, it was already widely known [56], and it would generally be of no interest to those having access to it [57]. The statistics showed that the respondent had taken steps to discipline officers who abused the information [58]. The court should give weight to the respondent’s chosen approach where considerable thought had been given to addressing the concerns of transgender customers [60]-[61]. The respondent was entitled to have regard to the cost of removing or masking the information [62]. In light of these factors, the interference was proportionate and no more than was necessary to achieve the objectives [63].

The SCR policy

The fact that the policy was intended to benefit the appellant was not of itself an answer to an art 8 challenge, as a policy designed to limit access to information may still permit wider access than is necessary [65].

Any administrative failings in the operation of the system did not constitute a breach of art 8 as some delay was inevitable if the system of authorisation was to work properly [68]. While in practice it may be true that the SCR policy draws attention to transgender people, it was the price to pay for seeking to ensure that access was limited [69].

ECHR, art 14

The SCR policy was designed to treat transgender people differently in accordance with the Thlimmenos principle [70]. Once it was accepted that the information could justifiably be held for fraud detection purposes, it could not be argued that the policies should have distinguished between those transgender persons whose gender history needed to be retained for pension purposes, and the rest [71]-[72].

Indirect discrimination

The policy did not put transgender people at a substantial disadvantage compared with cisgender people who were also subject to the policy [74]. Even if there were some disparate impact, any indirect discrimination could be justified on the same grounds as art 8 [75].

The Gender Recognition Act 2004, s 9

S 9 did not require history to be rewritten and in this particular context the fact that the appellant historically had a different gender could properly remain a material factor bearing on the application of government policy [77]-[79].

Issues before the Supreme Court

The Supreme Court must consider whether the respondent’s policies in respect of the retention and processing of historic gender data are compatible with the appellant’s rights under ECHR, arts 3, 8 and 14 and the Equality Act 2010, ss 13, 19 and 26.

Judgment will be handed down on 1 November 2017.