HR staff trying to help trans people applying for a job may inadvertently commit a criminal offence under the Gender Recognition Act, employment lawyers have told the government, which is considering how trans people can achieve legal recognition more easily.
Under section 22 of the 2004 act, it is a criminal offence for a person who has obtained 'protected information' in an official capacity to disclose that information to any other person. Protected information includes a person's application for legal recognition of their acquired gender or, if they have legal recognition, their gender history.
The Employment Lawyers Association says a section 22 breach does not require the disclosure to be malicious or intended to harm the trans person: 'Indeed the disclosure may be with the express intention of helping the trans person (and indeed may in fact help them) but would still amount to a criminal offence.'
The association provides a hypothetical example of an HR manager, helping a trans person applying for a job, who may need to disclose the applicant's gender history to their supervisor as part of a request that the interview panel does not know about the applicant's gender history.
The association's response was drafted by a working party including Shah Qureshi, head of employment and professional discipline at Irwin Mitchell's London office.
Qureshi said: 'Section 22 criminalises a disclosure even where it is made inadvertently. It also creates a hierarchy of rights between trans people and other protected characteristics like race, gender or sexual orientation. This is unlikely to be conducive to achieving equality across the board. These types of disclosure are best dealt with under the Equality Act which prohibits unlawful discrimination, harassment and victimisation.'
The association wants section 22 to be repealed. If section 22 remains, the association says it must contain some sort of mental element or mens rea, such as disclosing the information maliciously.
The association also points out that disclosing sensitive medical data may breach 2018 data protection legislation but would not be a criminal offence, but it would be under the 2004 Gender Recognition Act.
Discussing disclosure in court, the association says it may be necessary so that a person can defend their own rights: 'There are already adequate protections in place to mitigate any distress or difficulties caused by the exemptions. For example, the use of anonymity orders in court, anonymisation of court documents and, where appropriate, the holding of hearings in private. Each case falls, rightly, within the discretion of the judge to use his or her judicial discretion to make the appropriate order in the circumstances.'
The association's response concludes by stating that the law could be reformed so that protection is more easily afforded to those whose gender identity does not fit the definitions in the Gender Recognition Act and Equality Act. The association suggests that protection could be widened so that it includes those with a 'typical' gender identity, such as those who are bi-gender, agender, have no gender identity or whose gender identity is non-binary.
The Government Equalities Office has received more than 53,000 responses to its consultation, which closed on Monday.