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Supreme Court Ruling - Trans Woman v Work and Pensions - relevant to women's rights?

(7 Posts)
heresyandwitchcraft Sun 05-Aug-18 10:52:02

I came across this UK Supreme Court Judgment from 2017:

R (on the application of C) (Appellant) v Secretary of State for Work and Pensions (Respondent)

It's interesting because the Supreme Court discussed the Gender Recognition Act 2004; the Human Rights Act 1998; and the Equality Act 2010.

My own summary of the case is this:

A trans woman who holds a GRC took the department for work and pensions to court over how her data was being kept and shared in the context of administering benefits. She was not happy with the system, felt it was too intrusive, and discriminatory towards trans people.

The court went through all the salient parts of the law, explaining how the current data collection systems interact with the laws. They also talked about the practical considerations for the DWP and the real concerns over risk of fraud.

In my view, it's a lovely illustration of thinking out the problem of differing laws and competing interests very carefully.

Ultimately, they sided in favour of the DWP, saying their policies were proportionate means to reach legitimate ends, and not discriminatory. The case was dismissed.

So, I wondered whether the discussions in this case might be relevant to women's rights?

In other words, could one argue that female facilities/single-sex spaces were similarly trying to achieve legitimate goals, especially if organizations are trying to minimize both risks and discrimination?

Have we brought up this ruling before? I searched but was unable to find it on the board, so if anyone has a link to a previous thread I would appreciate it greatly.

LeiaTheSlaya Sun 05-Aug-18 12:53:40

Interestingly, Michelle Brewer of TELI UK, was involved in this case.

From Garden Court Chambers website:

Michelle is one of the founding members of the Trans Equality Legal Initiative.  This is the first UK-wide initiative aimed at empowering trans people to access legal protection and to support the learning of legal and other professionals who wish to work with the trans community in an inclusive and informed way.
•R (on the application of C) v Secretary of State for Work and Pensions [2016] All ER (D) 107 – Michelle is junior counsel in the upcoming Supreme Court case.  This appeal concerns, inter alia, the interpretation and scope of particular provisions in the Gender Recognition Act 2004 and the interplay of these provisions with the ECHR and Equality Act 2010.

Is this a different case to the one recently where the TW was granted pension rights in line with their identity as opposed to their biology i.e. as a woman?

heresyandwitchcraft Sun 05-Aug-18 13:05:32

Leia, it is how I found it! Well-spotted!

I think this is a different case, as it's more about data collection and access in the Dept of Work and Pensions in the UK. In this case the trans woman had a GRC. The Supreme court dismissed the case in favour of the DWP.

The other case was about pension age. The transwoman did not have a GRC because she and her partner didn't want to annul their marriage, I think. This one was heard in the European Court of Justice and found in favour of the trans woman.

Ereshkigal Sun 05-Aug-18 13:15:18

This is interesting. Someone at the WEP conference should ask Michelle why she lost that case, if it's all so watertight.

heresyandwitchcraft Sun 05-Aug-18 14:48:23

This I think would be an interesting line of questioning. As it appears this hasn't been massively discussed here before, I am going to include the parts I found most illuminating.

First, we know that Michelle Brewer of TELI was involved in the case, alongside her colleagues QC Stephanie Harrison and Claire McCann. The name James Morton also appears. Is this the same person as the Scottish Trans Alliance?

Now, the Supreme Court was very sympathetic to trans issues. Let me reproduce some the press summary. I will add some of my own comments that may be relevant to Women's Rights:

The appellant C has undergone gender reassignment from male to female. She was issued with a gender recognition certificate (GRC) in 2006. Since June 2010 she has been unemployed, apart from a period in 2015-16. In order to receive Jobseekers Allowance (JSA) she has to attend a Jobcentre Plus (JCP) office in person every two weeks. The DWP uses a centralised database, the Customer Information System (CIS), to record information about each of its customers, including his or her current sex, the fact that he or she was previously recorded as having a different sex (if applicable), his or her current name and title, and his or her former names and titles (if applicable), the fact that a person has a GRC and its date, and the reason for a change of recorded sex being gender reassignment (if this is the case). These data are held for the life of the individual concerned and for 50 years and a day thereafter (‘the Retention policy’). This is because gender at birth at present remains relevant to the calculation of state pension entitlement, and in order to detect fraud. The fact of a GRC and the reason for a change of recorded sex being gender reassignment is no longer visible to front-line staff, but any previous name, title or gender is visible.

So - let's say you run a women's shelter. What are the processes for capturing/storing information about previous identities. In the case of Christopher Hambrook in Canada who posed as a transgender woman and sexually assaulted 2 women after being convicted of rape previously - how would your risk-assessment system work for detecting such people (albeit rare)? Is biological sex-based discrimination or openly asking about previous identities/convictions best here?

Access to an individual’s CIS record is not required for the routine issue of benefit payments, but it will be required, for example, to make routine changes, such as a change of address. However, the DWP also has a Special Customer Records policy (‘the SCR policy’) which applies to certain categories of customer who require extra protection for their privacy and is routinely applied to transgender customers unless they ask otherwise. This requires specific authorisation for access. This has the effect that there are delays in accessing the account to authorise payment and it alerts the front-line staff to the probable reason for the restricted access. C has suffered distressing incidents at JCP offices when her transgender status has been openly referred to.

In the case of the women's shelter, how does one balance these questions and the needs of other users? What is the least intrusive thing?

After exploring possible alterations with the DWP, C issued proceedings in 2012. The High Court made a declaration that the Retention Policy was in breach of the right to respect for private life protected by article 8 of the European Convention on Human Rights (ECHR) as it was not sufficiently clear and accessible to be ‘in accordance with the law’. It has now been clarified. Her appeal to the Court of Appeal against the dismissal of her other claims was dismissed.

This is interesting, because they had clearly tried to work out a solution before taking this to court.

The Supreme Court unanimously dismisses the appeal. The Retention and SCR policies are not unlawful under the GRA, the HRA or the EA. Lady Hale gives the only substantive judgment.

This was a unanimous decision to dismiss.

Lawfulness under the GRA

S 9 GRA provides that where a GRC is issued a person’s gender ‘becomes for all purposes’ the acquired gender. It does not rewrite history or require the previous state of affairs to be expunged from official records, but other sections offer additional protection against inappropriate official disclosure of that prior history. The Retention and SCR policies are not therefore inconsistent with or prohibited by any provision of the GRA.

It does not rewrite history or require all records to be expunged. Let's all remember that.

Lawfulness under the HRA

The Retention and SCR policies do constitute a very serious interference with the rights of transgender people to respect for their private life protected by article 8 ECHR. The justifications relied on by the DWP–the need to retain information for the time being for the purposes of calculating state pension rights, and to identify and detect fraud –are legitimate and rationally connected with the policies. The question is whether the policies are proportionate. In carrying out the balancing exercise it is relevant that front line staff will only rarely have to access the CIS, that the DWP has been engaging with C over many years to try to understand and cater for her concerns, that it is no simple matter to modify existing computer systems designed to cater for vast numbers of customers, which interact with one another in complex ways, and that it is not possible to make further adjustments to the CIS without inordinate expense. It is not for the courts to administer the benefits system. The Retention policy is therefore a proportionate means of achieving its legitimate aims.The SCR policy cannot be considered in isolation from it. It has the legitimate aim of protecting the privacy of those customers who need and want it. The problems associated with it are inevitable if access to the CIS is to be restricted. It too is justified.

So they've given another option to accommodate trans customers, but there is no perfect solution. The considerations of risks of fraud and accurate record keeping are legitimate, as is the concern that re-writing the whole computer system would be an inordinate expense.
And here, I wonder whether that women's shelter could make a similar case: that if enough women say they feel unsafe around male bodied individuals/the process of risk assessing and managing such individuals would add to an inordinate expense/and they could campaign to set up trans-specific services, then would this also be legitimate?

Lawfulness under the EA

There is no direct discrimination on the ground of gender reassignment. The details of all customers who change their names and titles are recorded on the CIS. Transgender customers who need and want it are treated differently under the SCR policy. They are not treated less favourably as a result of their transgender status. The claim of indirect discrimination also fails. The court accepts that gender reassignment changes one’s identity at a much deeper level than name changes for other reasons. However the SCR policy is a proportionate means of achieving a legitimate aim for the purposes of s 19(2)(d) EA and for the same reasons any discrimination is justified for the purposes of article 14 of the ECHR.

Here we wonder whether one could argue that in many cases trans people are afforded the same rights as everyone else. For example, they have a right to exclude non-trans people from their services if they wish to do so and the explanations given are legitimate. I genuinely think they would bristle at the idea of a non-trans person taking up a trans political space. Additionally, we could argue for the third-space solution as appropriate - where trans people still get access to services that may actually be better tailored for their needs but the needs of others are also balanced. Privacy, dignity, safety and all that.

I don't know, perhaps this is reaching, but I do think there are interesting considerations to this case that may be applicable to single-sex facilities.

SonicVersusGynaephobia Sun 05-Aug-18 15:59:35

I like your analysis, OP.

LaSquirrel Sun 05-Aug-18 23:54:44

Yes, interesting heresy.
Of course they would find for DWP, protecting the pot of money and all.

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