C challenged two benefits policies. One kept a record of changes to a customer’s personal details. The other limited who could see that record. Restricting access protected privacy but could itself prompt a question at the counter when an ordinary enquiry took longer. The Court had to assess both sides of that difficulty.
C held a gender recognition certificate. When dealing with the Department for Work and Pensions, she found that precautions around her records sometimes drew attention to the very information she wanted kept private. Her challenge concerned the design of the policies and their effect on people using the benefits system.
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By the hearing, front-line staff could no longer see the fact of a certificate or the reason it had been issued. Earlier names, titles and gender remained on the central record. Special Customer Records protection restricted access unless the customer requested its removal. Although routine payments could continue, some enquiries required specific authorisation. The resulting delay could cause embarrassment or bring private information to the attention of others.
The proceedings below
The High Court accepted that record retention engaged article 8. The Department subsequently changed what front-line staff could see and clarified its retention policy. The Court of Appeal upheld both remaining policies, and C appealed.
Gender Recognition Act 2004
Section 9(1) provides that, on issue of a full certificate, a person’s gender becomes for all purposes the acquired gender. Section 9(2) says that this does not affect things done or events occurring before issue. Section 22 makes disclosure by officials of protected information, including pre-certificate gender, a criminal offence, subject to exceptions. One exception is disclosure for the purposes of the social security system or a pension scheme.
Lady Hale, with whom Lord Kerr, Lord Wilson, Lord Carnwath and Lord Hughes agreed, accepted that section 9 does not rewrite history. It describes a change from one gender to another, while later provisions address particular consequences of that change. Nothing in section 9 requires official records, or the memories of people who knew the person previously, to be erased. Sections 10 and 22 instead give further protection against inappropriate official disclosure. The social-security exception would be unnecessary if previous history could not be retained. The policies are therefore not inconsistent with the 2004 Act.
Privacy and proportionality
Both policies interfere with article 8. Restricted access is meant to protect deeply private information, but it alerts staff, and potentially others, to the likelihood of gender reassignment. Opting out avoids delay only by allowing less restricted access to the history. This is a serious interference with how the person relates to the world.
At the time of the case, pension calculations for some customers depended on their earlier history and the date of their certificate. The Department also needed to link records to detect someone fraudulently using a former identity. Lady Hale accepted both as legitimate purposes.
The question was whether the Department could achieve those purposes with less interference. The Court took account of the limited occasions when central records were needed, the changes already made and the evidence of the cost of modifying interconnected systems. Restricting access had a distinct aim of protecting privacy. On the evidence before the Court, delays resulting from that restriction did not make the policy disproportionate.
Discrimination and harassment
The Department retained former names and titles for all customers who changed them. It also offered restricted access to people who needed that protection. The Court accepted that the consequences of recording a change could be especially serious for transgender customers, but found no less favourable treatment because of gender reassignment.
Indirect discrimination was arguable. Many or all people who have undergone gender reassignment may need greater protection than people who change a name or title for another reason, because reassignment changes identity at a deeper level. Justification under article 8 does not automatically justify discrimination, but here the special-records practice is a proportionate means of achieving a legitimate aim under section 19(2)(d), and any discrimination is justified under article 14 for the same reasons.
C also raised harassment. An allegation about a particular incident would require evidence of what had happened and an opportunity for the parties to address it. The judicial review did not decide any such individual claim.
Verdict: The Supreme Court unanimously dismissed C’s appeal. On the evidence and pension arrangements before it in 2017, the two DWP policies were lawful under the Gender Recognition Act, the Human Rights Act and the Equality Act.
Source: R (C) v Secretary of State for Work and Pensions [2017] UKSC 72
