Privacy in law and how it relates to women's rights

[Ereshkigalangcleg]

Thread for a spin off discussion about the data protection act and when it is illegal to disclose someone's biological sex. This obviously has ramifications for single sex spaces and services. This is inspired by an ongoing employment tribunal of a rape crisis centre worker in Edinburgh.

She sent an email to colleagues asking if she could disclose to a service user (a female rape survivor who asked if everyone in the team was female) that a colleague was non binary but biologically female (assigned female at birth was the term used). She was put through a disciplinary process on the basis that the non binary person did not consent to the disclosure and was upset by it. This was potentially a breach of the Data Protection Act 2018. How can we speak about the biological sex of trans people without breaching data protection guidelines/law? Interested in responses.

Related and potentially more serious are the criminal sanctions which apply when the sex of someone with a gender recognition certificate is disclosed in an official capacity. This could catch even a doctor speaking to another doctor about a patient. The penalties are heavy fines and even a prison sentence.

Haven't had time to read the other thread as I got behind and now it is mammoth.

But in relation to service users this shouldn't be about DP but provisions of services being open and trustworthy.

ie if the service being offered was women only under the SSE then the user needs to know the provider is being honest. But the provider also needs to ensure that its employees and volunteers adhere to the stated provision.

So a non binary woman shouldn't and presumably wouldn't want to be part of providing a service that meant she would be denying her beliefs.

data protection relies to the storage on information by organisations that either should be not attached to an individual name, eg completing a form as part of an application should never to linked to the name of the applicant, but just to collect stats in terms of response to a job ad.

As to whether and employer and an employee can deny the right to refer to something that presumably the individual was open about in the work environment would be more about a breach of privacy, and / or a necessary fact in relation to providing a service that is honest in its description and delivery.

Although also if the employee applied for a job that was advertised as being women only as per the SSE then they shouldn't have applied.

If the service was mixed-sex, and provided no sex-specific provisions, then there would be no issue for staff who didn't want to reveal their sex.

There would obviously be a lot of issues for potential women users of the service.

If you want to have a service that does pay attention to sex, then you should not employ people who do not want to reveal their sex. And I think that can work out fine - yes it's discrimination, but if their belief in not having their sex revealed is infringing on the rights and dignity of others, then they fail Grainger #5.

It should hence be acceptable to employment discriminate against people who don't want their sex revealed if it is for the purpose of providing a service under the single-sex exemptions.

You don't breach their privacy by revealing their sex, thus not violating their relevant rights, but you do have the right to state that they're not suitable for the role.

So Edinburgh could settle down to a stable fully legal situation:

• ERCC, employing transwomen and NBs, not revealing any staff member's sex, and making no sex-based commitments. (It's not clear what right they'd have to turn away any male clients - I think a test case could show that they were not implementing a single-sex exemption).
• Beira's place, promising female service, employing only women, and revealing all their staff are women, and refusing to employ any males or women who objected to "revealing" that they were women.

Being involved in Education, I'm concerned that this repeatedly breaches safeguarding in schools.
When Eddie Jones (head of PE) becomes Edwina Jones, how can colleagues raise the issue of Eddie's supervision of the girl's changing room and showers if they're forbidden to acknowledge Eddie's trans status? What about if Eddie is a housemaster in a boarding school and now is a housemistress? How can children or parents raise concerns if mention of their attempted sex change breaches confidentiality?
There's still the issue of those self IDing as trans being exempt from the demands of the DBS system and allowed to conceal name changes and thus any previous convictions unless they choose to (and as we know, sex offenders are the most truthful of adults).
How does any of this allow for children to be safeguarded?

No data has been processed.

The defender didn't need confidential data and is unlikely to have access to the HR or payroll system where it's stored so no confidential data was disclosed.

Yes that was my thought. It is (afaik) illegal for the HR person who sees someones GRC as part of their work to tell anyone about it but if your colleague tells you they have a GRC you are perfectly within the law to tell people (you’re not covered by the data protection act)

GDPR seems to be a way mainly to confuse so people go along with what you want.

There are loads of companies processing data they shouldn't - all the forms asking for 'gender' (and not allowing you continue unless you select an option) when it's entirely irrelevant for a start.

KCSIE says safeguarding trumps GDPR and a GDPR concern is not a reason not to share data if there is a safeguarding concern. So it's pretty clear in that context. I would have thought the law was equally clear when it came to vulnerable service users at a rape crisis centre but don't know much about safeguarding for adults.

Safeguarding is supposed to be for everyone - sex matters for safeguarding so people should be allowed to discuss the obvious fact of people's sex in the context of safeguarding concerns.

Funny how it's all 'secrecy' when it comes to safeguarding but 'bring your authentic self to work' the rest of the time when you're just involving unconsenting others to validate you. Demands for wrong sex pronouns or non-sex pronouns are 'outing' so it's logically inconsistent that any employee demanding different pronouns should also require secrecy - they have outed themselves by compelling others to use non-normal English.

I should be used to the logical contradictions because the whole ideology doesn't make sense, but they still irk me.

I think it's the massive red flag safeguarding failure of it all that bothers me the most.

It should hence be acceptable to employment discriminate against people who don't want their sex revealed if it is for the purpose of providing a service under the single-sex exemptions.

I would imagine it would come under "proportionate means to a legitimate aim"

Although also if the employee applied for a job that was advertised as being women only as per the SSE then they shouldn't have applied.

They shouldn't, no, but IME people like this often do.

They shouldn't, no, but IME people like this often do.

I agree they probably do, but then employers should have a right to challenge them providing false information.

Which of course in the instance of women's support services links us to the report from Sex Matters about how women working in that sector dont feel able to speak opening about being GC.

Which of course makes it a complete farce as many of them are directly funded to provide women only support and advertise using the SSE.

Its not even as those who aren't playing by the rules are being covert, they are usually quite open and feel confident that their rights are the priority and effectively act in a way that says challenge me if you dare.

Placemarking. Thanks for starting this Erish.

Thanks for starting the thread.

This is about the workplace only and about what an employee can and cannot disclose to a client/customer/member of the public in carrying out their job.

GDPR and DPA are about the collection, processing and storing of data. There are different levels of data and sensitive or special data has a higher level of protection.

In this case a very junior and relatively new member of staff (C) asked for assistance in responding to an enquiry from a client.

The company policy was that TWAW and that they employed no men.

As I understand it the client asked a general email if the support worker would be female. The support worker assigned (B) was Non-Binary (NB) and described as AFAB ie.female.

B has made colleagues aware they were NB and their sex was obvious.

C asked for advice on how to respond and wanted to say B was NB AFAB. C was subject to disciplinary action because the email in and out boxes were open to other colleagues and B was distressed by the suggestion their sex should be disclosed to a client.

NB people are NB and that is their philosophical belief. Disclosing they are NB automatically disclosed their philosophical belief and by stating their sex to 3rd parties such as clients, customers or members of the public is I believe a breach of DPA/GDPR. A more generic response could be found which did not “out” B.

Asking a manager for advice and suggesting the disclosure is not a breach of DPA/GDPR.

I believe an employee telling a 3rd party a colleagues NB or trans status and their birth sex is a breach of DPA/GDPR.

Someone who identifies as non-binary would not have a GRC. It's really difficult to see how disclosing that they were biologically female would be a breach of the DPA.

yes, I'm confused about this, it sounds as if the employee was merely seeking advice as to how to reply to the enquiry, within the team, where presumably it was already known to everyone that the team included a female person who was NB.
I'd have thought it would be OK then for the service user to be told 'all our staff are female'- and this would not breach GDPR since no one is named.

C was subject to disciplinary action because the email in and out boxes were open to other colleagues and B was distressed by the suggestion their sex should be disclosed to a client.

Yes, sorry I didn't include that detail in my précis in the OP.

Someone who identifies as non-binary would not have a GRC. It's really difficult to see how disclosing that they were biologically female would be a breach of the DPA.

That's also my position.

If the service user was told 'oh yes, Alex who works here on friday, they are non binary, but its OK, they were AFAB'- that would be a GDPR breach.

You surely can't take someone to a tribunal because you're upset about something that might happen

The "disclosing NB" thing makes no sense though. NB's whole thing is to publicly not be he-or-she.

If someone is privately NB - ie they don't publicly deny their sex, and don't attempt to make anyone use non-sex-based-pronouns then sure. But that's not the normal NB scenario.

The original trans thing - "this person is publicly pretending to be female, so don't out them - maintain the female pretence" at least made some sort of superficial sense. It was an "outing" thing - not revealing (notionally) hidden information.

"I want to publicly not be 'he' or 'she' but you mustn't tell anyone that" clearly fails Grainger 3 - "It must attain a certain level of cogency, seriousness, cohesion and importance."

If the service user was told 'oh yes, Alex who works here on friday, they are non binary, but it's OK, they were AFAB'- that would be a GDPR breach.

YY, I think that's clearer.

If the above is correct (ie because it wasn't a private correspondence but viewable by others) then how can an organisation deal honestly with a client whose right to single sex services are undermined by this.

And if the employee is non binary how come one member of staff (the one dealing with the enquiry) knew but apparently others didn't.

Given the nature of the work, being able to provide SS services then staff have to say what their identity is.

However in the instance of the ERCC as their public position is TWAW then the only response can be there are no single sex services offered as per the SSE.

The original trans thing - "this person is publicly pretending to be female, so don't out them - maintain the female pretence" at least made some sort of superficial sense. It was an "outing" thing - not revealing (notionally) hidden information.

Exactly. Now it's just an opportunity for a power trip.

@Sisterpita could you please link the case where 'non-binary' was defined and found to constitute a protected belief? I assume it was a higher court to set a precedent so am surprised to have missed it!

Pondering the multiple ways we disclose other people's sex in our daily lives.

For example, when I say I went to the doctor/solicitor/mechanic/dentist and my friend says 'what did he say?' and I reply 'she said...'

How though, as no sensitive data was involved at all.?

Someone just used their eyes and described what they saw, albeit in stupid trans language.

How can we speak about the biological sex of trans people without breaching data protection guidelines/law? Interested in responses.

I am going to start with a depends on the circumstances. Cop out I know.😂

What I can speak on MN, or in a coffee shop or pub etc. is very different to what I can say in the workplace. Even within the workplace what I can say depends on who I am talking to colleagues, managers, 3rd parties etc.

In court some women have been forced to call their rapists she, I believe this constitutes compelled perjury. If a victim cannot use the sex they believe their rapist to be they are not telling the truth, the whole truth and nothing but the truth = perjury.

In the workplace talking about the biological sex of an individual does require care. Talking in general is different.

The relationship I have had with colleagues means I have known personal information. It would be inappropriate if I revealed that information to 3rd parties. I believe the same applies to disclosing a trans or non-binary colleagues sex.

Being able to discuss trans/GI and GC issues at work should be possible. This is where no debate has actually harmed both sides of the issue.

I am not sure if I have full answered your question.

This is the relevant bit of the GRA:

https://www.legislation.gov.uk/ukpga/2004/7/section/22

But that wouldn't be relevant to someone who just "identifies" as non-binary.