Transsexual people: your rights relating to privacy

Protected Information about transsexual people

Section 22 of the Gender Recognition Act says that:

'It is an offence for a person who has acquired protected information in an official capacity to disclose the information to any other person.'

'Protected information' means information which relates to a person who has made an application under the Gender Recognition Act. This covers both the fact of the application itself and, if the application was successful, the fact that the individual was previously of the opposite gender to the one in which they are now legally recognised.

A person acquires information in an 'official capacity' if they are acting:

  • in connection with their functions as a member of the civil service, a constable or the holder of any other public office or in connection with the functions of a local or public authority or of a voluntary organisation,
  • as an employer, or prospective employer, of the person to whom the information relates or as a person employed by such an employer or prospective employer, or
  • in the course of, or otherwise in connection with, the conduct of business or the supply of professional services.

It is not an offence to disclose information obtained in these circumstances if:

  • the information does not enable the person to be identified, or
  • that person has agreed to the disclosure of the information, or
  • the person making the disclosure genuinely does not know or believe that a full gender recognition certificate has been issued, or
  • the disclosure is in accordance with an order of a court or tribunal, or
  • the disclosure is for the purpose of instituting proceedings before a court or tribunal, or
  • the disclosure is for the purpose of preventing or investigating crime, or
  • the disclosure is made to the Registrar General for England and Wales, the Registrar General for Scotland or the Registrar General for Northern Ireland, or
  • the disclosure is made for the purposes of the social security system or a pension scheme, or
  • the disclosure is in accordance with provisions made through regulations which the Secretary of State is permitted to make under the Act.

The law does not apply to information about a person’s gender recognition application or gender reassignment history when the information originates outside of an official setting – through social contact, for instance.

What the law means 

This means that you need to be very specific when dealing with managers who employ you, and officials who provide services, about what you consent to allow them to do.

People in authority may not have been trained to understand this aspect of the law. However, ignorance is not a defence in these matters. It is what is called a 'strict liability' offence, for which there are to mitigating reasons other than the exceptions listed.

As it is in a transsexual person’s interests for officials to understand the importance of these provisions, however, it is often better to be prepared to help them by explaining their responsibilities.

The law does not just apply to word of mouth disclosure. Paperwork and computer records are significant too. Therefore officials must be careful about what they record and file about you (or what was recorded and filed in the past) so as to avoid others from seeing information which becomes protected as a result of a gender recognition application and legal recognition.

Purpose of the law

The purpose of the law was to recognise that there are legitimate times when people do need to know about a transsexual person’s gender reassignment in order to do the best and right thing. The law is not there to enforce absolute secrecy but to remind officials that they have a serious responsibility for the potentially negative outcomes of using information irresponsibly.

In other words, the law is there to assure transsexual people that when they do share this information it will not be revealed to strangers who don’t need to know.

When sharing information may have benefits

In practice there may be circumstances where officials need to explain that the inability to share the protected information with a colleague could affect the services they receive. In such cases a responsible official ought to explain the likely consequences of non-disclosure so that the individual can make an informed decision to give permission for limited sharing of the information. The decision to do this is entirely voluntary though.

It is worth remembering that the use of personal information is strictly governed by the Data Protection Act 1998 and by professional registration bodies.

For example, when taking up a new employment it may be in your interests for an occupational health specialist or medical examiner for the employer’s pension and insurance schemes to be aware of the gender reassignment aspect of your medical history. This is not to imply that gender reassignment treatment introduces risks, but it may be helpful so that these professionals can understand the rest of your medical history properly.

When you supply the information you can point out that it is given under the protection of Section 22 of the Gender Recognition Act, and what that means.

Such professional examiners are used to dealing with intimate and private medical histories all the time and report only their conclusions about insured risks. The detail in their records is not accessible to the organisations who contract their services. Therefore they will be used to how to distill factual conclusions from the information they’ve been given without revealing embarrassing detail.

Last Updated: 19 Oct 2009