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DWP loses case against transgender claimant

The High Court rules that policies are discriminatory and breach privacy rights

21 July 2014

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The High Court rules that policies are discriminatory and breach privacy rights

A 44-year-old from London has successfully challenged the legality of the Department for Work and Pensions' (DWP) systems for handling personal information that discloses their transgender status.

The DWP retains customer details on an extensive citizens' database, which contains the personal data for nearly 100 million individuals. Some gender data is retained for 50 years and one day after the death of the customer.

C, who cannot be named for legal reasons, maintains that it is irrelevant for local job centre staff to know of their former gender. The High Court heard that C's previous gender should be forgotten except in circumstances where it was strictly necessary.

The High Court ruled that the DWP's policies for retaining data which identifies someone as transgender are discriminatory and breach privacy rights under the European Convention on Human Rights because they are not sufficiently clear, precise or accessible.

Salima Budhani, a solicitor at Bindmans, said: "While my client welcomes the court's ruling, the judgment shows that much remains to be done to protect the privacy and dignity of this often marginalised group.

"The judge found that the DWP's policies on which it relies as authority to retain this most personal information for what is essentially an indefinite period are incoherent and inaccessible. He accepted our evidence that a third policy detailing measures put in place by the DWP in an attempt to protect the centrally recorded gender change information gives rise to problems for transgender benefits customers - including the very effect that it intends to avoid: drawing attention to their trans status.

"This leaves my client and thousands of other transgender benefits recipients in an acutely vulnerable position, particularly in their interactions with local job centre staff who may come to know about their trans status when it is simply not relevant to the administration of their benefits."


'Real progress tempered by reality'

Declan O'Dempsey is an equality law barrister practising from Cloisters

"Transsexuals are a small but highly vulnerable group in society. They have had to fight hard for the right to be recognised fully in their acquired gender, even in law. Christine Goodwin took the fight to the European Court of Human Rights. In the UK, the Gender Recognition Act 2004 enabled an individual to be granted a 'Gender Recognition Certificate', the trigger for the right to be recognised 'for all purposes' in the acquired gender.

"What does 'for all purposes' mean in reality? C argues that she - and the state - should be permitted to forget that she was once male where the fact of her transgender status is simply not relevant to her dealings with the state. How far can she insist on being treated as female, rather than as transgender?

"C has interactions with the DWP. She is long-term unemployed and in receipt of jobseeker's allowance. As such, she must go to her localJobcentre Plus every fortnight. During these interactions Jobcentre staff may well come to know, as a result of data retained on centraliseddatabases, that C - although female - was born male. C felt that this was wrong because her gender reassignment is not conceivably relevant to her dealings with Jobcentre staff.

"The High Court held that the DWP's retention of data on its databases which identified C as transgender interfered with her right to respect for private life. The judgment then concluded not only that it was necessary for the DWP to retain this data but that, for the time being anyway; it was probably justified in retaining the data in a visible way.

"C argued that, if it was necessary for gender reassignment data to be retained, it should be masked or concealed so that it could only be accessed on a 'need to know' basis. While the court seemed to see some force in this, the judgment appears to permit the DWP some time to review and perhaps alter its systems for retaining gender reassignment data. Consequently, for some time to come, transgender benefits claimants such as C remain in the vulnerable position of interacting with DWP staff in the knowledge that their intensely private gender history may be revealed when it is simply not relevant.

"Thus the case represents real progress, tempered by the reality that a government organisation's weeding of its databases may take time. However, the judgment is not clear. For example, it says that the defendant failed on the question of justification of indirect discrimination under the Equality Act 2010. If that is so, the provision, criterion or practice of the Secretary of State is unlawful.

"The judgment is also puzzling because it says that the legal basis for the policy is insufficiently clear and accessible. This is a pre-requisite for legality. If the policy does not have a legal base, it is unclear how proportionality enters into the discussion. The only reasonable way to construe the judge's finding on indirect discrimination is that the justification failed and, therefore, the policies are unlawful. On the question of relief, that should result in more than merely declaratory relief."


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