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Your Right to Privacy

Traditionally, the United Kingdom law has not provided a free standing ‘right to privacy’. Yet there is case law and some legislation, which if you are transgender,  can protect different aspects of your private life.

Since the coming to force of the Human Rights Act 1998, the law has developed and individuals have significantly greater scope to use the law to protect their privacy.

However, if information is passed from one person to another without your knowledge or permission, there has been little you can do about it. Unfortunately, the law, protects nobody from general gossip.

However, any person living permanently in their preferred gender role, whether or not they have obtained a Gender Recognition certificate still enjoys basic rights to respect for private life, and in some cases, statutory protection does exist including protection from having your phone calls and mail intercepted.

[In light of the recent phone hacking scandal we may see those rights enforced a little more, and possibly even extended.]

If you applying for or have a Gender Recognition Certificate:

If you are applying for or have a Gender Recognition Certificate, you have enhanced privacy rights under s.22 of the Act.

Section 22 of the Act provides that it is a criminal offence for person who has acquired protected information in an official capacity to disclose the information to any other person.

Your “Protected information” is defined in section 22(2) as information relating to a person who has applied for a gender recognition certificate under the Act, and which concerns that application (or a subsequent application by them), or their gender prior to being granted a full Gender Recognition Certificate.

“in an official capacity" is defined by Section 22(3) as being where a person acquires the information:

(a) in connection with the person’s 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,

(b) 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

(c) in the course of, or otherwise in connection with, the conduct of business or the supply of professional services.

For this protection to apply you must:

a) be applying for or have already received a gender recognition certification (GRC)

b) have disclosed that you are transgender or transsexual to a person who is acting in an official capacity, at that time.

If you believe your section 22 rights have been breached then,

  1. If you feel able, talk to the person concerned and explain that what they have done not only puts your life and wellbeing at risk, but it is a strict liability criminal offence subject to a level 5 fine of up to £5000. If there is a sicnere apology, and and a promise that it will not happen again, then that is probably going to be the end of the matter, unless you have to deal with consequential issues - in that case, ask the person concerned to act to prevent those.

  2. If you do not feel able to speak to the person concerned, then contact their senior line manager, or the company board and explain the same. [The least you can expect is a sincere apology and a promise that it will not happen again, and they will handle any consequential issues.]

  3. If there is still no serious consideration of the issues, then contact the police, as matter of urgency, and report it as a crime.

·         The police will undoubtedly resist acting upon this matter, but direct them to ACPO (the Association of Chief Police Officers) who have guidance on this point.

·         The police must bring an application for a criminal hearing to the magistrates court within 6 months of the criminal act, otherwise the courts cannot hear the matter and the crime will go unpunished.

EXEMPTIONS TO s.22 PRIVACY PROTECTION

When a person has been awarded a gender recognition certificate, under section 22 of the Act they have enhanced privacy protection in relation to their prior medical and status history. Anyone who learns of a person's trans status within their official capacity must not disclose it further without the express permission of the trans person. If such permission is not provided then disclosure must not take place. Disclosure under these circumstances is a strict liability criminal offence subject to a level 5 conviction with a fine of up to £5000.

The Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) Order 2005 lays out exemptions to the privacy provisions of the Gender Recognition Act 2004. The exemptions allows

  • those in senior religious positions such as ministers of a church,

·       to disclose a trans person’s status to another minister,

·       so long as the information is only passed on in order that the other minister does not unwittingly perform a marriage ceremony which his conscience would lead him to objecting to.

  • medical personnel, including paramedics, nurses and dentists,

·       to disclose the transgender status of a patient, who has a gender recognition certificate

·       when the trans patient is unconscious or otherwise so ill that they cannot make a decision as to whether they will permit disclosure of their status and

·       it is necessary to pass on this information to ensure appropriate care and treatment can be immediately provided for the patient.