"The purpose of a DBS check is not to predict future risk based on someone’s sex, it’s to check whether or not someone has committed previous crimes."
It is more than that - as you would know if you had read the report, but you haven't read the report, have you?
https://kpssinfo.org/reports
Extracts from
DBS CHECKS AND IDENTITY VERIFICATION:
SAFEGUARDING LOOPHOLES CREATED BY CHANGES OF IDENTITY
THE DISCLOSURE AND BARRING SERVICE: AN INTRODUCTION (Page 6)
Safeguarding refers to the framework of measures designed to protect the health, well-being and human rights of individuals. Where safeguarding measures are adequate and properly applied as part of an ongoing process, they allow people to live free from abuse, harm and neglect.
Certain groups of people are in particular need of safeguarding. These include children and vulnerable adults. The main pieces of legislation governing safeguarding are the Care Act 20142 for adults and the Children’s Act 20043 for children.
The purpose of the Disclosure and Barring Service (DBS) is to help employers fulfil their safeguarding duties by enabling them to make safer recruitment decisions. The DBS does this by processing and issuing DBS checks for individuals who have applied to work in roles where safeguarding considerations apply. DBS checks disclose records of relevant past convictions, cautions, reprimands and warnings. Different levels of check can be requested: the level of check required will be determined by the nature of the role for which the individual is applying. The DBS also maintains
the Adults’ and Children’s Barred Lists and makes decisions as to whether an individual should be included on one or both of these lists and hence barred from working with vulnerable groups.
The DBS does not undertake individual case-by- case assessments. Rather, this is a category-based system of disclosure specified by legislation. This means that certain convictions must be disclosed as part of a DBS check and where an individual has committed a particular offence, they must be included on the relevant Barred List. A category- based system has the benefit of legal certainty and also reflects the strong public expectation for proper standards of protection against threats to the welfare and safety of the public, particularly that of children and vulnerable adults. By contrast, a system of individual case-by-case assessments introduces the possibility for ambiguity and inconsistency.
The DBS is a non-departmental public body accountable to parliament through the Secretary of State for the Home Office. The functions of the DBS are those contained within the Safeguarding Vulnerable Groups Act 2006,4 Part V of the Police Act 1997,5 the Safeguarding Vulnerable Groups (Northern Ireland) Order 20076 and Protection of Freedoms Act 20127.
See Appendix One for the history and development of employment vetting and barring.
1 https://www.gov.uk/government/organisations/disclosure-and-barring-service/about
2 https://www.legislation.gov.uk/ukpga/2014/23/contents
3 https://www.legislation.gov.uk/ukpga/2004/31/contents
4 https://www.legislation.gov.uk/ukpga/2006/47/contents
5 https://www.legislation.gov.uk/ukpga/1997/50/part/V
6 https://www.legislation.gov.uk/nisi/2007/1351/contents
7 https://www.legislation.gov.uk/ukpga/2012/9/contents
Adults’ and Children’s Barred Lists (Page 9)
The Adults’ and Children’s Barred Lists are lists of people who have been barred from working with vulnerable adults and with children respectively.
It is a criminal offence for a person to work with members of a group from which they have been barred from working. The lists record the following information:
- Title
- Surname
- Forenames
- Date of Birth
- Gender 17
17 Email correspondence dated 16 May 2022
The application process (Page 10)
The application process is completed online. The individual in respect of whom the DBS check is being carried out is required to provide a minimum of three current original documents. Collectively these must confirm:
- Current legal name
- Current address
- Date of birth
Where a Responsible Organisation has requested the DBS check, the ID checks should be carried out with the individual face-to-face.
We completed an Enhanced with Children’s Barred List DBS check (see Appendix Two). For the purposes of this DBS check, the individual provided: current valid passport; current photo card driving licence; bank/building society statement. In addition to providing their current address, the individual must also provide any additional addresses for the previous five years. No supporting evidence of these is required and this question relies upon the individual’s honesty in providing a truthful and complete answer. There is an opportunity to provide any previous names used. Again, no supporting evidence of these is required and this question relies upon the individual’s willingness to provide a truthful answer.
The DBS certificate issued to the individual displayed the following information:
- All other names disclosed by the applicant
- Police records of convictions, cautions, reprimands and warnings
- Information from the list held under Section 142 of the Education Act 2002
- DBS Children’s Barred List information
- DBS Adults’ Barred List information (in this case the information was not requested)
- Other relevant information disclosed at the Chief Police Officer(s) discretion
Safeguarding loopholes: change of name and gender (Page 16)
The ability to change identity by what is arguably a more fundamental degree, by changing both name and gender also presents a risk to safeguarding. Not only is the individual able to change their name on identity documentation, but they are also able to overwrite the recording of their sex registered
at birth with their acquired gender, including in some cases on their birth certificate. In this way, individuals are able to change the recording of
two key identity markers, one of which, sex, is a protected characteristic under the Equality Act 2010.46 Correctly ascertaining sex registered at birth may form an important part of safeguarding and concealing this on a DBS certificate may present a particular risk including where protections for women and children are concerned.
There are two ways by which a change of identity consisting of change of name and change of gender may be affected: by obtaining a gender recognition certificate in accordance with the provisions of the Gender Recognition Act 2004,47 and by a process of self-declaration. Clearly,
this is not to suggest that every person who changes their identity either in accordance with the Gender Recognition Act 2004 or via a process of self-declaration does so with nefarious intent. However, a loophole has been created which whose who seek to hide their existing identity and thereby gain access to children and vulnerable adults are able to exploit.
This risk to safeguarding was unaddressed by the Safeguarding Alliance. Although their report recommended that the automatic right to change one’s name should be denied to registered sex offenders, the ability of registered sex offenders to change identity by other means is unaddressed and unchallenged. Where such an identity change is undertaken in accordance with the provisions of the Gender Recognition Act 2004, the individual acquires a new copy birth certificate which records the individual’s acquired and legally recognised gender in lieu of and as opposite to their sex as registered at birth. Hence, the report’s recommendation that birth certificates be a mandatory requirement for DBS checks would provide insufficient protection.
46 https://www.legislation.gov.uk/ukpga/2010/15/contents
47 https://www.legislation.gov.uk/ukpga/2004/7/contents
Safeguarding loopholes: concealing sex registered at birth (Page 22)
Additional safeguarding risks may present when an individual, on the basis of changing their identity, is able to conceal their sex registered at birth on their DBS certificate. This will occur when the identity documents submitted for the purposes of the DBS check record the individual’s self-declared gender identity or legal gender instead of, and as opposite to, their sex registered at birth. In this set of circumstances, the DBS certificate issued to the individual will not display their sex registered at birth. Rather the certificate will show the individual’s self-declared gender identity or legal gender. Where a DBS check has been requested for a role to provide a single-sex service on a same-sex basis, it will be particularly important that the sex registered at birth of the individual is known.
As before, this is not to suggest that every person who seeks to change their gender, whether via self-declaration or in accordance with the Gender Recognition Act 2004, does so in order to evade safeguarding. However, granting individuals the ability to change their gender as part of a change of identity has created a loophole that may be exploited by those acting with ill intent.
The Equality Act 2010 Schedule 9, Part 168 (Page 22 - 23)
The Equality Act 2010 sets out when discrimination on the basis of what are known as protected characteristics is unlawful. The nine protected characteristics are set out in Chapter 1: 69 70
- age
- disability
- gender reassignment 71
- marriage or civil partnership (in employment only)
- pregnancy and maternity
- race
- religion or belief
- sex
Schedule 9 provides an exception to what would otherwise be unlawful direct discrimination in relation to work. The exception applies where being of a particular sex, race, disability, religion or belief, sexual orientation or age is a crucial requirement for the post. Applying the requirement must be
a proportionate means to achieve a legitimate aim. The exception also applies where not being transgender is a requirement.
Schedule 9 Part 1 provides that where a separate- sex or single-sex service is provided, as is permissible under the single-sex exceptions set out in Schedule 3,72 roles that provide those services may be lawfully restricted to those having a particular protected characteristic, in this case sex:
A person (A) does not contravene a provision mentioned in sub-paragraph (2) by applying in relation to work a requirement to have a particular protected characteristic, if A shows that, having regard to the nature or context of the work—
(a) it is an occupational requirement,
(b) the application of the requirement is a proportionate means of achieving a legitimate aim, and
(c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).
Paragraph 3 of Part 1 provides that it is lawful to also exclude a ‘transsexual person’ who has the protected characteristic gender reassignment:
(3) The references in sub-paragraph (1) to a requirement to have a protected characteristic are to be read—
(a) in the case of gender reassignment, as references to a requirement not to be a transsexual person (and section 7(3) is accordingly to
be ignored);
This means that all individuals whose sex registered at birth is male, regardless of their gender identity or whether they are in receipt of a gender recognition certificate, can lawfully be excluded from roles that provide single-sex services to women and girls on a same-sex basis under Schedule 3. Examples include roles providing intimate care to women and girls, or providing counselling services to female victims of rape. These provisions in the Equality Act 2010 provide protection for the privacy and other fundamental rights and freedoms of women and girls on the basis of their biological sex. For this reason, it is important that service providers recruiting for these roles have accurate information concerning applicants’ sex registered at birth.
The application of the Schedule 9 exceptions hinges on the ability to properly balance the rights of individuals in a way that is achievable in practice. In our opinion, where the right of an individual to have their sex registered at birth overwritten with their legal gender or self-declared gender identity on a DBS certificate for a role subject to Schedule 9 Part 1 overrides the right of a service user to receive that single-sex service on a same-sex basis, the balance of rights is wrong.
Enhanced and expanded privacy rights mean that individuals who wish to are able to conceal their sex registered at birth on the identity documents they present for a DBS check. This means that the DBS certificate issued will not display the individual’s sex registered at birth. As a result, service providers recruiting for single-sex services provided on a same-sex basis are unable to meet their basic safeguarding requirements and are unable to make the decisions needed in order to facilitate the operation of the service.
68 https://www.legislation.gov.uk/ukpga/2010/15/schedule/9
69 https://www.legislation.gov.uk/ukpga/2010/15/part/2/chapter/1
70 Under the Equality Act 2010 all protected characteristics are considered separately: they operate in parallel. Consequently, the protected characteristic gender reassignment is not a ‘feeder’ into the protected characteristic sex. Thus, a person whose sex registered at birth is male who has a gender recognition certificate showing their acquired gender as female is not covered by the protected characteristic sex ‘woman’. The February 2022 judgment handed down in the reclaiming motion brought by the campaign group For Women Scotland in respect of their petition for judicial review of the Scottish Government’s decision by way of the Gender Representation on the Public Boards (Scotland) Act 2018 to implement certain positive action measures supports this. ( www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for- opinions/2022csih4.pdf?sfvrsn=7920df79_1) The challenge included the definition of “woman” in section 2 of the Act which would allow persons whose sex registered at birth is male and who have the protected characteristic gender reassignment to be defined as “women” for the purposes of the Act. The judgment found in favour of For Women Scotland, ruling that the definition of “woman” in section 2 of the Act is outside the legislative competence of the Scottish Parliament in that it relates to reserved matters. As such “woman” in the Act should be defined in the same way as in section 212(1) of the Equality Act 2010, such that “woman” means “a female of any age”. In the judgment, Lady Dorrian commented on the protected characteristics in the Equality Act 2010. At paragraph 37, she states that within the protected characteristic gender reassignment “no distinction is made between those for whom the relevant process [of gender reassignment] would involve reassignment male to female or vice versa... In other words, it is the attribute of proposing to undergo, undergoing or having undergone a process (or part of a process) for the purpose of reassignment which is the common factor, not the sex into which the person is reassigned.” At paragraph 38, she notes that the Equality Act 2010 maintains the distinct categories of protected characteristics. She further explains at paragraph 49, “by incorporating those transsexuals living as women in the definition of woman the 2018 Act conflates and confuses two separate and distinct protected characteristics” and at paragraph 40, that “transgender woman” is not a protected characteristic.
71 The protected characteristic gender reassignment applies independently of whether or not the individual has been issued with a gender recognition certificate.
72 https://www.legislation.gov.uk/ukpga/2010/15/schedule/3
CONCLUSIONS AND RECOMMENDATIONS (Page 27)
DBS checks play an important role in safeguarding and help organisations make safer recruiting decisions. DBS procedures are designed to both deter unsuitable people from applying to work with vulnerable groups and to assist organisations in identifying and rejecting them if they do. Organisations are only able to rely on the DBS checking process to the extent that the checking systems are robust and the information displayed on DBS certificates is both accurate and complete.
However, where an individual changes their gender as part of changing their identity, the DBS grants them an extraordinary level of privacy, wholly unlike that granted to any other individual. This has created loopholes whereby an individual is able to conceal their past identities for the purpose of the checking process and request that past names they have used are not displayed on the DBS certificate issued to them. The loopholes mean that organisations have no way of knowing whether or not the information displayed on any DBS certificate presented to them is an accurate and complete record concerning that individual. The loopholes mean that current faith in the rigour and utility of DBS checks is, regrettably, misplaced. These are serious risks to safeguarding and compromise the DBS system in its entirety.
Although safeguarding loopholes resulting from the ability of registered sex offenders to change their names via deed poll have been acknowledged by the government, there is a reluctance to appreciate that those loopholes are only one part of the risk to safeguarding that the enhanced right to privacy given to those who change their gender has created. Including a change of gender when creating a new identity can be achieved via self-declaration and is something that anyone can do and for whatever reason.
We propose three recommendations:
- Mandatory use of National Insurance numbers for DBS checks and identity changes
- DBS certificates display sex registered at birth
- DBS certificates display other names used for all applicants, including those who have changed gender as part of changing identity
We believe that, together, these recommendations are sufficient to close the current loopholes in the DBS system.
Recommendation Two: (Page 29-30)
DBS certificates display sex registered at birth
Currently, an individual is able to have their legal gender or self-declared gender identity recorded on their DBS certificate in lieu of, and as opposite to, their sex registered at birth. This presents additional and separate risks to safeguarding that exist independently of whether checks have been conducted against all the identities an individual has used, meaning that the rest of the information displayed on the certificate is complete and accurate.
As previously discussed, where legal gender or self-declared gender identity is displayed instead of sex registered at birth, there is a particular safeguarding risk when the DBS check has been requested for the purposes of a role specified in accordance with the provisions in Schedule 9 Part 1 of the Equality Act 2010 to provide single-sex services. As a general principle, when working with children or vulnerable adults, there will always be sex-based safeguarding considerations even if Schedule 9 is not formally invoked.
Our recommendation is that DBS certificates display the individual’s sex registered at birth. This can be ascertained by checking against the individual’s National Insurance number.86 We recommend:
- That the DBS certificate data field currently labelled ‘gender’ is renamed ‘sex’
- That DBS certificates for Standard, Enhanced and Enhanced with Barred Lists checks display the individual’s sex registered at birth and not their self-declared gender identity or legal gender
These recommendations do not impact upon a transgender individual’s current ability to change their identity documents and/or birth certificate and to present these as proof of identity to a prospective employer. Individuals may still change identity via self-declaration or in accordance with the Gender Recognition Act 2004, as they wish.
These recommendations do, however, impact on the privacy of a transgender person for whom a Standard, Enhanced or Enhanced with Barred Lists DBS check is requested: the DBS certificate will display their sex registered at birth, not their acquired gender. However, if the current safeguarding loopholes are to be closed, this is unavoidable. This impact on privacy can be mitigated against by including the requirement that all individuals for whom such DBS checks have been requested are informed that the DBS certificate will record their sex registered at birth as ascertained from their National Insurance record. Those individuals who, on that basis, do not wish to proceed, are free to withdraw and the application can be terminated. Those who wish to proceed may tick a box that affirms their consent to this. This will also ensure that in respect of transgender individuals who have been issued with a gender recognition certificate that there is no risk of a breach of section 22 of the Gender Recognition Act 2004: they will have consented to their sex registered at birth being shared for this purpose.
When considering the impact on privacy, it is important to note that Schedule 9 Part 1 of the Equality Act 2010 permits the lawful exclusion of
all those whose sex registered at birth is male, including those with the protected characteristic gender reassignment and who may present identity documents recording their legal gender or self- declared gender identity as female. In order for that lawful exclusion to operate and for the single- sex service to function as the service provider intends, it is clearly necessary to determine the sex registered at birth of those male individuals who present identity documents displaying their acquired gender as female.
86 https://www.gov.uk/government/publications/transgender-customers-summary-of-dwps-policy-in-respect-of-the-retention-of-information/summary-of-dwps-policy-on-the-retention-of-information-relating-to-transgender-customers
Recommendation Three: (Page 30)
DBS certificates display other names used for all individuals
A DBS certificate standardly displays all other names the individual has used because those who are responsible for safeguarding need to know these when applicants seek to work with children and vulnerable adults. However, an individual who is eligible to use the Sensitive Applications Route, a service specifically intended to protect the privacy of transgender applicants, can request that their DBS certificate does not show their previous identities. Whilst the DBS considers that the individual privacy rights of those who change their gender outweigh some of the requirements for safeguarding, this level of privacy is not granted to any other group. No other individual is entitled to have their previous names hidden in this way.
By enabling those who have changed their gender to keep their previous identities secret from those responsible for safeguarding, the DBS has created a loophole that is ripe for exploitation.
We recommend:
• That DBS certificates record previously used names for all individuals.