Whatnow? Pregnant "persons"

[Nellooo]

Erm... Help. Please discuss as I'm too flabbergasted to type.

www.newstatesman.com/politics/feminism/2017/03/there-so-much-fear-moment-meet-midwife-who-wants-change-how-we-give-birth

From the Gender recognition Act 2004:

"Prohibition on disclosure of information [essentially, revealing that the subject has undergone gender reassignment]

(1)It is an offence for a person who has acquired protected information in an official capacity to disclose the information to any other person.

(2)“Protected information” means information which relates to a person who has made an application under section 1(1) and which—

(a)concerns that application or any application by the person under section [F14A,] [F24C, 4F,] 5(2) [F3, 5A(2)] or 6(1), or

(b)if the application under section 1(1) is granted, otherwise concerns the person’s gender before it becomes the acquired gender.

(3)A person acquires protected information in an official capacity if the person acquires it—

(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.

(4)But it is not an offence under this section to disclose protected information relating to a person if—

(a)the information does not enable that person to be identified,

(b)that person has agreed to the disclosure of the information,

(c)the information is protected information by virtue of subsection (2)(b) and the person by whom the disclosure is made does not know or believe that a full gender recognition certificate has been issued,

(d)the disclosure is in accordance with an order of a court or tribunal,

(e)the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal,

(f)the disclosure is for the purpose of preventing or investigating crime,

(g)the disclosure is made to the Registrar General for England and Wales, the Registrar General for Scotland or the Registrar General for Northern Ireland,

(h)the disclosure is made for the purposes of the social security system or a pension scheme,

(i)the disclosure is in accordance with provision made by an order under subsection (5), or

(j)the disclosure is in accordance with any provision of, or made by virtue of, an enactment other than this section.

(5)The Secretary of State may by order make provision prescribing circumstances in which the disclosure of protected information is not to constitute an offence under this section.

Maybe (5) is what Harriet Harman was referring to?

carole

I'm not very good with lots of legal clauses and paragraphs, so I'm not sure I've got this right

They don't seem to mention a doctor's role as a means of acquiring protected information, nor do they mention that they are exempt from legally being enable to disclose it, even if it impacts on the person in question's health/life?

Although, as I said I'm not very good with this stuff and I might well have missed it in there somewhere.

Does it come under professional services? That doesn't really seem right. Or "in connection with the functions of a local or public authority"?

I don't know anything about it, but (4)(b) allows a doctor to mention sex / presence of female sexual organs such as ovaries in a letter to another doctor, doesn't it? As long as they have the patients permission?

Asking the patients permission to refer them to a specialist doesn't seem like a huge leap. If the person refuses then you've done your best, and must leave them to their beliefs, much like dealing with an extreme religion.

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

??
The GP who posted recently said that she needed the patient's permission for it to be ok, even as a within service referral.

Yes she said you could do it if you had their permission.

Interesting - I know several professional people who have broken that law then on disclosure.

Tbh I find it hard to get excited by that.

Speaking as someone with a lot of personal experience of mental health referrals, discussion with the patient and requesting permission for potentially delicate or upsetting referrals and/or information sharing is very important. The days of doctors freely talking about patients behind their backs and not informing them so as 'not to upset them' are supposed to be gone.

I am a women and if my GP suspected ovarian cancer and made a referral for me damn right I'd want them to tell me and check I'm ok with it.

Yes it wasn't about being able to disclose it per se, it was about doing so if you were denied permission by the patient.

Everybody obviously thought it would be mad to do something so counter-productive to your own health. But I don't think sanity is high up on the list for a lot of these people.

For me, it was more whether somebody might make political capital out of it. For perhaps a more minor ailment that didn't actually put their life in danger. If a GP mistakenly misgendered for say, some dental work. I can absolutely see an activist gleefully having them prosecuted.

If a GP mistakenly misgendered for say, some dental work. I can absolutely see an activist gleefully having them prosecuted

I'd hope not but you are probably right. Such things happen all the time and accidentally. People are only human.

It is a new world for people - and there are professionals who have to get used to dealing with trans people and try to use appropriate language. Mistakes will happen.

It is an individuals right to decline medical treatment. I would be very suspicious of a doctor who thought they should get to dictate that a person received medical help when they didn't want to.

I know it happens with people who are severely mentally ill but it's a very difficult area ethically.

I guess I would assume - much like they do with patients with severe MH issues - they would check with a trans patient in advance that if they suspect a medical issue related to their trans status or biological sex history that it would be ok to share information with other medical professionals.

What I am trying to say is that I think there is a much wider trend of seeking patient engagement with medical decisions. I am totally against the erasure of women as a sex/class but this specific issue I don't see as being part of that. I see it as part of a wider trend towards the appropriate way of dealing with patients and patient information.

Yes.

Doctors can't/shouldn't share information if the patients don't want them to. That's a pretty well established principle and has nothing to do with trans issues.

I think it might be getting into a tricky area.

GP sees a patient.
GP wants to refer that patient to a consultant.
The issue may be complicated due to the underlying biology, hormones and organs that may or may not be present in that person - OR it may be totally irrelevant.
A conversation needs to be had as to whether the GP needs to mention the status / medical history of the patient in that referral letter - especially if they are unsure if it's relevant or not.

If the patient refuses, then what..

It is confidential and an accepted part of difficult conversations a patient and GP need to have.

But it's also difficult conversations other professionals may need to have with people - such as social workers, teachers etc. The elephant in the room.

Batteriesallgone

I understand and I do largely agree with what you're saying. However this particular GP had not been told before that it would be a criminal offence to disclose the sex of her patient. It's simply had never come up.

I think the problem with it now, is the legitimising of the complete erasure of a transperson's former life. There have been several cases even in the last week where the biological sex of the transperson is the most salient point.

I agree entirely that patients should have more rights. I'm fairly sceptical about the medical profession in general.

But in terms of not disclosing the biological sex of somebody trans, I think it is too often being used as a means to obscure and dissemble.

Surely though it is clear that the ethical thing to do with a trans patient is establish the extent to which they wish to have that information shared. As with any deeply personal information.

I don't think sharing information you haven't asked for permission to share should be acceptable. So I have no objection to it being an offence tbh.

There is an exemption to the privacy requirement in relation to crime:

"(f)the disclosure is for the purpose of preventing or investigating crime"

But not for the purposes of reporting crime (unless it is essentially part of the investigation, I suppose - eg 'be on the lookout for this person who may be presenting as ...')

I suppose it could also be argued that logging crimes by sex rather than gender is an important part of preventing crime, since there is a distinct clustering of certain offences around biological sex.

I don't think sharing information you haven't asked for permission to share should be acceptable. So I have no objection to it being an offence tbh.

I accept your point. I think I'm just seeing it as part of a larger picture.

But not for the purposes of reporting crime (unless it is essentially part of the investigation, I suppose - eg 'be on the lookout for this person who may be presenting as ...')

I think this is where people are getting confused. The transwoman rapist who absconded last week had only recently transitioned. She took off her wig and make up and dressed in her male clothes after the crime. It was reported that the police were looking for a woman who may be dressed as a man.

Which to me, is a completely unnecessary and misleading head fuck. And if her identity were to be enshrined in law, it would be completely legitimate for them to report in that way.

Yes that reporting was totally unnecessary and wrong. Although surely that would come under the heading 'investigating crime'? So they would be allowed to disclose that they were looking for a man?

I would have said so.

Except when it was first reported, it didn't.

Part of the problem with all this is people aren't sure where they stand in terms of the law. So they are going with the least offensive option possible.

The least litigatable

Yep. Which is why this really does need a challenge in the courts to demonstrate that sex-based legal rights still exist.

The least litigatable

Yes, that is a very good distinction.

I do think that it is fear of doing the wrong thing, either legally or 'liberally', that drives much of the reporting. Which only reinforces the need for clarity of law making, and thus clarity as to the language and principles underlying those laws.