R (on the application of C) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Kerr,Lord Wilson,Lord Carnwath,Lord Hughes |
| Judgment Date | 01 November 2017 |
| Neutral Citation | [2017] UKSC 72 |
| Date | 01 November 2017 |
| Court | Supreme Court |
[2017] UKSC 72
Lady Hale
Lord Kerr
Lord Wilson
Lord Carnwath
Lord Hughes
Appellant
Stephanie Harrison QC
Michelle Brewer
Claire McCann
(Instructed by Bindmans LLP)
Respondent
Charles Bourne QC
Heather Emmerson
Rupert Paines
(Instructed by The Government Legal Department)
Intervener (The Equality Network) (Written submissions only)
Dinah Rose QC
Jason Pobjoy
(Instructed by Arnold & Porter Kaye Scholer LLP)
Heard on 10 and 11 July 2017
(with whom Lord Kerr, Lord Wilson, Lord Carnwath and Lord Hughes agree)
"We lead women's lives: we have no choice". Thus has the Chief Justice of Canada, the Rt Hon Beverley McLachlin, summed up the basic truth that women and men do indeed lead different lives. How much of this is down to unquestionable biological differences, how much to social conditioning, and how much to other people's views of what it means to be a woman or a man, is all debateable and the accepted wisdom is perpetually changing. But what does not change is the importance, even the centrality, of gender in any individual's sense of self. Over the centuries many people, but particularly women, have bitterly resented and fought against the roles which society has assigned to their gender. Genuine equality between the sexes is still a work in progress. But that does not mean that such women or men have not felt entirely confident that they are indeed a woman or a man. Gender dysphoria is something completely different — the overwhelming sense that one has been born into the wrong body, with the wrong anatomy and the wrong physiology. Those of us who, whatever our occasional frustrations with the expectations of society or our own biology, are nevertheless quite secure in the gender identities with which we were born, can scarcely begin to understand how it must be to grow up in the wrong body and then to go through the long and complex process of adapting that body to match the real self. But it does not take much imagination to understand that this is a deeply personal and private matter; that a person who has undergone gender reassignment will need the whole world to recognise and relate to her or to him in the reassigned gender; and will want to keep to an absolute minimum any unwanted disclosure of the history. This is not only because other people can be insensitive and even cruel; the evidence is that transphobic incidents are increasing and that transgender people experience high levels of anxiety about this. It is also because of their deep need to live successfully and peacefully in their reassigned gender, something which non-transgender people can take for granted.
This case is about how the Department for Work and Pensions (the DWP), in administering our complex welfare benefits system, treats people with a reassigned gender, and specifically whether certain policies conflict (1) with the Gender Recognition Act 2004; (2) with the Human Rights Act 1998; or (3) with the Equality Act 2010. Those policies have undergone change in the course of these proceedings, as have the arguments presented, and so the issues before this Court are in some respects different from the issues before the High Court and the Court of Appeal.
The appellant has undergone gender reassignment from male to female. Her transition began in 2003 and she changed her name in 2004. She has undergone full gender reassignment treatment and surgery, which in her case included facial feminisation surgery, in her words because it was "incredibly important" to her "easily to 'pass' as a woman". Her gender recognition certificate (GRC) was one of the first to be issued under the Gender Recognition Act 2004. The Gender Recognition Panel notified both the Inland Revenue (now HMRC) and the DWP of the change.
She was employed in a variety of roles, some managerial, until she became unemployed in June 2010. Since then, apart from a period of employment in 2015–2016, she has been in receipt of Jobseeker's Allowance ( JSA), a benefit which is administered by the DWP through Jobcentre Plus (JCP) offices. As a condition of receiving JSA, she has to attend a JCP office in person every two weeks. Her principal concern in these proceedings is with the way in which her history is recorded by the DWP and the effect that this can have on her interactions with its officials. She has had a number of distressing experiences which indicate that DWP policies do not effectively protect the privacy of her status but rather tend to draw attention to it.
The DWP uses a centralised database, the Customer Information System (CIS), to record information relating to each of its "customers" and everyone else who has a National Insurance number. The CIS interfaces or links to a number of other computer systems, including over 40 systems within government and quasi-government departments, local authorities and HMRC, as well as to benefit-specific computer systems, including the Jobseeker's Allowance Payments system (JSAPS) which is used to administer JSA. About 140,000 persons are authorised to access the CIS.
The information recorded on the CIS about a customer includes 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, its date of issue and date of notification to DWP, and (where this is the case) the reason for a change of recorded sex being gender reassignment. These data, including the data recording a change of gender, are held for the life of the individual concerned and for 50 years and one day thereafter. This has been referred to as "the Retention policy" in these proceedings.
When these proceedings were begun, as long ago as 2012, the fact of a GRC and the reason for a change of sex being gender reassignment were noted in such a way as to be visible to front-line users of the CIS, such as staff at the JCP offices. This has been referred to as the "GRC Noting policy" in these proceedings. As a result of these proceedings and changes to the DWP's IT supplier arrangements, those matters are no longer visible to front-line staff and so the "GRC Noting policy" is no longer under challenge. However, any previous name, title or gender is visible and in the great majority of cases the reason for a change of name, title and gender will be gender reassignment. Hence, without an extra layer of protection, front-line staff could readily infer that gender reassignment had taken place.
That extra layer of protection is achieved through the DWP's Special Customer Records Policy (referred to in these proceedings as the SCR policy). This sets out special procedures for dealing with the records of certain categories of customer who require extra protection, for example because unauthorised disclosure of their records could result in substantial distress or physical harm. The categories of customer to which the policy may be applied include, for example, victims of domestic or honour based violence and people with witness protection orders. But it is not applied automatically to all such people, as we are told that the great majority of those to whom the policy is applied are transgender. It is, however, applied automatically to all those recorded on the CIS as having a GRC, unless and until the customer asks for it to be disapplied. The protection is therefore optional, but without it a person's gender history would be readily discernible by staff who needed to access the CIS.
Under the SCR policy, an individual's CIS record receives a protected marking, ranging (at the material time) from private, restricted, confidential, secret to top secret. Transgender records were marked restricted. Persons wishing to access them must be specifically authorised and must have a legitimate business reason for doing so; access is limited to a specific purpose or purposes; and it is time-limited for a period not exceeding four hours.
Access to an individual's CIS record is not required for the routine issue of benefit payments, including JSA. However, an adviser will need to access the CIS in order to make routine changes to relevant information, such as a change of address or contact details. For an SCR customer, this will require the same authorisation process as described in para 12 below. Authorisations are monitored, so that inappropriate or unauthorised access can be discovered, and this may result in disciplinary action.
Typically, the administration of claims for JSA requires a JCP adviser to access two systems, the JSAPS and the Labour Market System (LMS). These are both affected by the SCR policy. The LMS records information about the steps taken by the customer to obtain employment. But it does not do so for customers who are subject to the SCR Policy. Instead, their efforts to find work are recorded manually on paper. When the customer's LMS record is accessed, a warning of "additional protection facility from unauthorised viewing" will pop up directing the adviser to the paper record, which will only be accessed once authorisation is given.
The JSAPS records information which enables an adviser to assess entitlement to JSA and authorise payment. When an...
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