Picture credit: Tim Robberts/Getty
Artillery Row

Secrets and lies

The secrecy clause in the Gender Recognition Act is a big problem

Susie Green, the ex-CEO of child transition charity Mermaids, is proud that on her son’s 16th birthday she took him to Thailand to have his male genitals surgically refashioned to resemble a vulva and vagina. She has shared the story many times; in a TED talk, on the This Morning sofa with Phillip Schofield, in numerous media interviews and as a TV drama. 

But when The Sunday Times published the same facts in an article critical of childhood transition, she complained to the Independent Press Standards Organisation (IPSO) that it was a breach of privacy, and argued that by referring to her son as “he” and “male” The Sunday Times was guilty of discrimination and inaccuracy. 

IPSO last week robustly dismissed the complaint, saying that details of Susie’s son’s life are in the public domain because Susie and Jackie Green put them there. It was not irrelevant, insulting or inaccurate for the article to refer to her son as male. IPSO also released new guidance which makes clear that although journalists should not make pejorative reference to an individual’s sex or their “gender identity”, there is no requirement not to mention these characteristics at all (and doing so will often be necessary for accuracy). 

This minor skirmish in the gender wars highlights something important: what we think of as a battle between “women’s rights” and “trans rights” is really a series of showdowns involving the human rights of freedom of expression (Article 10 of the European Convention on Human Rights) and the right to privacy (Article 8). 

The logic of human rights is not that people and organisations must line up waving flags behind Article 8 or Article 10, but that every individual holds both  protections, and when rights are in tension, the conflict needs to be talked about and resolved. 

The Editor’s Code is itself an instrument that aims to balance the two rights. Its clause on privacy basically starts with a recitation of Article 8: “Everyone has the right to respect for his private and family life, his home and his correspondence.”

The Gender Recognition Act 2004, which enables people to change the sex on their birth certificate, was enacted by the UK Government because it lost a pair of cases which hinged on Article 8. The argument was that when a person who wishes to be treated socially as the opposite sex is forced to reveal information showing their actual sex in the course of dealing with officialdom, this breaches their right to privacy.   

Building on this, a one-sided weaponisation of Article 8 has been used to batter down the boundaries to women’s changing rooms and women’s refuges, and to force people to refer to men as women and to mind their pronouns.

But as the IPSO ruling reflects, Article 8 is a limited right — there are many ordinary situations where people’s privacy can be impinged upon. We are all subject to routine and lawful collection and use of our information in the interests of national security, public safety, economic activity, the prevention of crime, the protection of health or morals, and the protection of the rights and freedoms of others. It happens on the day we are born, and every time we go to the bank or the doctor, register our children at school, get a job or pay income tax, and on the day we die. 

There is also a basic practical limitation to Article 8: you cannot protect the privacy of information that is already widely in the public domain. 

This statement of the obvious has been hashed out in terms of human rights. In 1991 The Sunday Times won against the UK government when the European Court of Human Rights found that the injunction to prevent it publishing extracts from Peter Wright’s MI5 memoir Spycatcher was a disproportionate infringement on freedom of expression, since the book had already been published in other countries and the information contained in it discussed in other public forums. 

Section 22 of the Gender Recognition Act is something like the Spycatcher injunction, or the ruling that Susie Green sought from IPSO.

Section 22 makes it a criminal act to share information that someone has a gender-recognition certificate (GRC) and about their actual sex, if you acquired that information in an official capacity. It seeks to make a secret out of information that is already in the public domain, and that it is almost impossible to keep secret in life. And in doing so it leads to disproportionate infringements on others’ human rights. 

Information about a person’s sex is written across their face, their body, the way they talk and the way they walk

Information about a person’s sex is written across their face, their body, the way they talk and the way they walk. The information is possible to keep secret only if the person is not physically present, or at least not beyond fleeting social interactions. It is also written into their personal history. To keep the information secret a person must be willing and able to cut their current identity off from their previous life, and not go on to become a mother or a father.

But these conditionalities are not attached to getting a GRC. Applicants are not required to cut themself off from their life history, or to cut off parts of their body. To require them to do so would in itself be a breach of their human rights (in a case involving the French government in 2017, the European Court of Human Rights ruled that compulsory sterilisation or other medical treatment as a condition of gender recognition violated Article 8).

The criminal sanction created by Section 22 applies to people working across the public, private and voluntary sectors in any capacity. They cannot share information about a person’s actual sex with their colleagues if they acquired it in the course of doing their jobs, alongside the information that the person has a GRC, unless the person agrees to that specific disclosure. This applies even if in practice everyone knows the person’s sex: they can’t talk about it, write it down or use it to make any official decisions based on it. The drafters of the GRA provided only very limited exceptions, such as for a court order, prevention or investigation of a crime or for the purposes of a social-security system. 

The year after the Act was passed, it dawned on officials that the conditions were too stringent and the government hastily added a few more exceptions, covering disclosure for the purpose of obtaining legal advice, for religious or medical purposes, and for credit referencing, insolvency and bankruptcy. 

But many everyday situations remain in which it is a criminal act to share information about a person’s sex if you know that they have a GRC (unless they have expressly given consent for that particular instance of information-sharing). And while no one has ever been prosecuted or fined for disclosing this information, organisations nevertheless take the risk seriously. 

It means that, for example, an employer cannot have a rule that allows only transgender employees with a GRC to use the opposite-sex toilets, as this would mean they would have to explain why one male employee who identifies as a woman can use the ladies’ while another cannot. Every time they tell someone why a particular individual is allowed in, they would be liable to an unlimited fine. And every employee they tell would be liable to an unlimited fine if they pass the information on. 

Similarly, a woman who identifies as a man and who has a GRC saying she is a man will still be known to be the mother at her child’s school (mother is a legal relationship between the person who gives birth and the child). But if anyone in the school explains that the child’s mother is legally recognised as a man because of a GRC they are liable to an unlimited fine. 

Large organisations create elaborate systems to avoid revealing the obvious and creating liabilities for their employees. The Department of Work and Pensions treats the records of any individual with a GRC as highly sensitive and the person has to make special appointments at the job centre. NHS organisations avoid revealing that a person’s legal sex and biological sex don’t match by not recording either in their medical records, instead asking people a pair of confusing questions about the gender they identify with and whether this is the same as their sex at birth. The Information Commissioner’s Office has a detailed 35-page policy about what to do if they receive correspondence from someone with a GRC (the instructions include putting any paper correspondence inside a sealed envelope and marking it “Official Sensitive — Protected Information”, putting that inside another sealed envelope marked “Official — Sensitive”, putting that package into a particular locked filing cabinet and then telling the official who is designated to receive this information). 

These contortions are ridiculous and pointless. But even more concerning, no one appears to have considered what to do in the situation where the information about a person’s sex is needed, and cannot simply be quarantined in a locked filing cabinet or the digital equivalent.  

To give just one example: if a man who identifies as a woman and has a GRC is employed in a job that involves close person-to-person contact, such as undertaking intimate examinations or searches, the employer has no legal means to talk about the distinction between someone who is an actual woman and a woman-by-virtue-of-a-certificate, even if the distinction is crystal clear to ordinary perception.

Discussing the fact that a nurse, doctor, police officer, prison warden or teacher has a GRC in this situation would risk the employer and potentially employees being subject to an unlimited fine. 

The Ministry of Justice is currently stuck in this Kafkaesque maze

The Ministry of Justice is currently stuck in this Kafkaesque maze trying to finalise its policy on prison searching. The Department of Health has backed away from the NHS Confederation’s guidance that hospitals should not necessarily tell patients the sex of healthcare professionals, and is considering what to do about single-sex hospital accommodation. The government is considering how to sort out the relationship between the Equality Act and the Gender Recognition Act.

The thing they must recognize is that the cloak of extreme privacy on information about anyone with a GRC puts organisations in positions where they will infringe the human rights of other people instead — article 8 at the point where they tell a woman that the male security officer running his hands around her waistband is a woman, and article 3 (the prohibition against torture and inhuman or degrading treatment) at the point where the male nurse puts his fingers inside her vagina while she is lied to, bullied or threatened into pretending he is female. 

While only around 5,000 people have a GRC, the institutional jeopardy created by Section 22 is what leads organisations to get lost in obfuscating language and to harass and bully “gender critical” staff who want to talk clearly. Unable to address the dilemma of what they should do when the right to privacy of a man who wants to have to access to spaces where women are naked without their consent comes into conflict with the right to autonomy and privacy of those women, organisations call those who might raise the question transphobes, and pressure them into silence. 

But the government must deal with the problem of Section 22. It cannot solve the problems with hospital wards or prison searches without tackling this. All roads lead back to Article 8, and the GRA’s overreaction to it. 

The GRA was enacted in response to a pair of 2002 judgments by the European Court of Human Rights that ruled that the UK had violated Article 8 in respect of two post-operative transsexuals who wished to change their birth certificates to read “female”. The violation of Article 8 related to information privacy; in any situation where a birth certificate was required to be shown their sex would be revealed.  

The better-known of the two claimants was Christine Goodwin, born Anthony Allington, a father and bus driver who transitioned at the age of 50. Goodwin claimed that he faced discrimination when asked to show a birth certificate in order to apply for a mortgage or insurance at the bank.

The polite fiction was maintained that bank staff meeting Goodwin face-to-face would not immediately clock him as a transsexual. This impression can only be maintained because after the case Goodwin disappeared from public life, and his image never features in celebrations of trans history. He died in obscurity in 2014. His daughter remains upset that he was not celebrated and received no public honours. 

Perhaps Goodwin’s plunge out of the limelight happened precisely because of his legal success: if he followed up the ECHR win by applying for a GRC when the law was enacted, then that would have made it a criminal act for anyone who learnt about it an official capacity to talk about it. It would be impossible for the honours committee to consider the story of a legal trailblazer who got a GRC, because sharing the information in an official capacity would risk an unlimited fine. 

More broadly, perhaps publicising and celebrating one of the first people to get a GRC did not fit well with the Article 8 rationale that the reason for the Act was an imperative to respect personal privacy.

But Goodwin had, in fact, not made heroic efforts to be private. Like Susie Green, Goodwin had been on the “This Morning” sofa with Phillip Schofield. And in 1989, before he had surgery in 1990, Goodwin featured in a Channel 4 documentary about transsexuals, which shows him in lady-mode driving a bus and doing an interview to camera. “I’m bionic,” says Christine, with a hairstyle and makeup that is feminine and a face and voice that are clearly male. 

The other claimant in the European Court of Human Rights, “I”, did keep his identity hidden, but his case raises even more questions about whether it is proportionate to legislate to try to keep information about someone’s sex secret in a broad set of circumstances. 

“I” was a dental nurse in the Army and wanted to apply to train as a general nurse. “She alleged that she was unable to obtain a further professional qualification… without producing her birth certificate and that she would be required to reveal her pre-operative sex to any female patient whom she examined.”

The government defence was, in essence, dress however you please and call yourself whatever you like but we are not changing your birth certificate. In relation to the question of the job it deferred to the Nursing Council’s existing policy, which “was to amend the gender on record” with a letter from a consultant psychiatrist. No one asked how this worked in practice  or whether it was reasonable for patients to expect healthcare professionals examining them to be honest about their sex. 

While the Government argued in the Goodwin and “I” cases that there was already a fair balance between the rights of the individual and the general interest of the community, after it lost, it enacted a law that radically tipped that balance. The GRA tried to do the impossible magic of turning a man into a woman, rather than secure the much more limited right that Article 8 is designed to protect (to say “none of your business” to a personal question in situations where the answer isn’t anyone else’s business). 

The approach it adopted of changing birth certificates and imposing criminal penalties on information disclosure is, in a digital age, unnecessary. 

A better solution for information privacy is the one we now all use every day. Pieces of information are stored as digital attributes and can be disclosed individually as and when needed. You don’t have to disclose your date of birth (or any other personal information) to show that you are over 18

Should Christine Goodwin be able to validate his identity at the bank without revealing information confirming his male sex? Sure. But does this mean nurse “I” must be able to lie about his sex to patients? No.

When a patient asks what sex the healthcare professional examining her will be, the only answer that is not irrelevant, insulting or inaccurate is the truth. 

Solving the problem of how to reconcile transgender people’s rights and everyone else’s rights requires a sharp focus on what those rights are — for trans people it is the very limited right to keep information about their sex private in some circumstances, not the blanket ability to dictate other people’s thoughts and speech, or to force organisations to keep impossible secrets. It is definitely not the right for a man to force his male body (whatever cosmetic surgery he may or may not have had) into intimate proximity with non-consenting women in situations they have been told are female-only. Other people have rights too.

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