On appeal from: [2016] EWCA Civ 47

Consideres whether the respondent’s policies in respect of the retention and processing of historic gender data are compatible with the appellant’s rights under the Gender Recognition Act 2004, s 9, the ECHR, arts  8, 14 and the Equality Act 2010, s 19. These data are held for the life of the individual concerned and for 50 years and a day thereafter (‘the Retention policy’). In addition, there is also a Special Customer Records policy (‘the SCR policy’) that applies to certain categories of customer who require extra protection for their privacy. It is routinely applied to transgender customers unless they ask otherwise: this requires specific authorisation for access to the data.

Held, unanimously dismissing the appeals. The policies are not inconsistent with s 9 of the 2004 Act. It does not rewrite history or require the previous state of affairs to be expunged from official records. Whilst the Retention and SCR policies are significant interference with art 8 rights, they are a proportionate way of meeting legitimate aims. There is no direct discrimination under the 2010 Act, the details of all customers who change their names and titles are recorded. Transgender customers who want it are treated differently under the SCR policy, but are not treated less favourably. The SCR policy is a proportionate means of achieving a legitimate aim for the purposes of s 19(2)(d), and for the same reasons any discrimination is justified for the purposes of ECHR, art 14, and so the indirect discrimination claim fails.

[2017] UKSC 72
Court’s Press Summary

To watch the hearing, please visit: Supreme Court website (10 Jul 2017 morning session), (10 Jul 2017 afternoon session), (11 Jul 2017 morning session)