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.

You seem to be talking nonsense with great certainty Sisterpita.

Thanks @Sisterpita. I understand how the data protection act works. I'm not the only person to be questioning the application of it here though. And on the other thread you changed whether it was the NB status or the sex which was sensitive data. At one point you said it would be ok to say that everyone on the team was female including but not mentioning the NB female person. And now you are implying that her sex cannot be disclosed even anonymously. So it's clearly not all that cut and dried.

You know as well as I do there isn’t a precedence yet.

However, in the workplace an employer can choose to recognise NB as a philosophical belief and treat it as such. It is often under dignity at work or code of conduct about treating colleagues with dignity and respect.

Employees may face disciplinary action for not using they/them etc. as bullying and harassment. One of these cases is likely to end up setting a precedent.

In this case the employer appears to treat NB as a valid status and that NB employees should be treated with dignity and respect in the workplace.

I think you are according a non binary person's actual sex a legal weight that it doesn't necessarily have. Non binary people are the sex they were born for the purposes of the EA. It's disputed whether the EA has any protection for non binary people at all.

I think we're in danger of conflating workplace policies (which of course are relevant to this case) with the overarching legal position with regard to whether you can mention a non binary person's sex even anonymously.

In law, I think it's unclear whether it would be discriminatory not to recognise a non binary person's NB identity.

If it doesn't exist then you are clearly doing a lot of extrapolating.

Choosing to recognise 'NB' as a philosophical belief has no legal standing.

Yes. I don't think it's the same belief as the belief that everyone has a gender identity etc because a lot of people who believe that believe it would be either male or female.

An employee's sex isn't classed as sensitive data.

And mentioning it at work is not processing data.

If you have access to sensitive data as part of your job you have to follow the rules but sex isn't included in that. Sexual orientation and ethnicity is and that data should not be mandatory for anyone to provide to their employer.

I also stated on the other thread that I had got it the wrong way round and apologised. I appreciate keeping up with threads can be difficult.

At one point you said it would be ok to say that everyone on the team was female including but not mentioning the NB female person.

What I said was “
However, it should be possible to reassure a client without having to disclose personal data. For example I can confirm all our support workers are female or you will be allocated a female support worker. “

I am realistic that if a client turned up to a face to face meeting they would obviously identify the sex of the person but that is different to emailing saying NB AFAB.

And now you are implying that her sex cannot be disclosed even anonymously. So it's clearly not all that cut and dried.

Did I?

No I agree that NB people and trans who don’t have a GRC are the sex they are born.

Those with a GRC only have a legal sex it doesn’t change their biological sex - nonsense I know but that’s the legal position.

How do you mention a persons sex anonymously? Are you saying by ERCC suggesting an appropriate response was "we don't have any male workers" it anonymously implied everyone was female including the NB employee?

@DrSpartacularsScathingTinsel in this case I believe it is potentially relevant.

I have been clear I am debating this case

@Hepwo I agree within the workplace is not a breach.

The debate is about whether you can then tell a 3rd party e.g. client, member of the public a TW/TM or NB colleagues biological sex.

The debate is about whether you can then tell a 3rd party e.g. client, member of the public a TW/TM or NB colleagues biological sex.

So you're changing your mind about "revealing NB status"? (Again?)

😂it’s a pleasant way to spend a free day where it’s to cold to go out.

Oh, maybe I was misreading you. Were you saying "revealing their NB status and sex (simultaneously)" was a problem, implying the NB status was relevant, but actually it was just the sex reveal? The NB status was just the events of this particular case, not relevant to your argument?

I must be missing something. I know the sex of all my colleagues without looking it up on a database. I can easily imagining mentioning in passing e.g. "the man over there with the green tie on".

How on earth would this be a GDPR breach?

An employee's sex is not sensitive data. There's no restrictions on it

Or are we entering the second-level loop where the sex reveal is only sensitive for trans/NB people, therefore to reveal that we can't reveal someone's sex (or confirm their obvious sex) is to indirectly reveal their trans/NB status...

I can easily imagining mentioning in passing e.g. "the man over there with the green tie on".

How on earth would this be a GDPR breach?

Arguably to not say that could be a GDPR breach - indicating that you had special knowledge that they were not a man as from appearance, but non-binary or a transwoman...

Going by surface appearance is the only way to be sure of not revealing private information.

I know, we've descended into farce.

What RA wanted to say was NB AFAB.

My argument is about this case. I have been clear on this throughout.
⭐️ yes it’s revealing NB and sex at the same time.

What I said was “
However, it should be possible to reassure a client without having to disclose personal data. For example I can confirm all our support workers are female or you will be allocated a female support worker. “

if you say all the support workers are female, and one isn't because they identify as non-binary, surely you're denying their existence??

And very likely encouraging genocide.

I know we're all trying to, at least, work within the confines of something that is ridiculously batshit. But when it reaches batshitery upon batshitery, it really does become a waste of oxygen.

"revealing"