R (on the application of C) v Secretary of State for Work and Pensions: Queen's Bench Division, Administrative Court (London): 18 July 2014

Right to respect for private and family life - Gender - Defendant secretary of state having policies concerning holding of information of gender reassignment - Claimant issuing judicial review proceedings, contending policies unlawful

In 2003, the claimant began transition from male to female and, in January 2004, changed her name. In March 2006, she received a gender recognition certificate (GRC) and the issue of her GRC was notified to the Department of Work and Pensions (the DWP), as she was in receipt of jobseeker's allowance.

The claimant issued judicial review proceedings, challenging the defendant secretary of state's: (i) Special Customer Record policy (the SCR policy), which limited access by DWP employees and others to sensitive information; (ii) the policy of visibly retaining the gender change data on the customer information system in the case of individuals who had a GRC (the retention policy); and (iii) the policy of visibly noting the existence of a GRC (the noting policy).

The claimant contended that the policies were unlawful because: (i) they constituted violations of her rights under articles 8 and 14 of the European Convention on Human Rights (the Convention); (ii) they directly or indirectly discriminated against her by reason of her gender reassignment, contrary to sections 13, 19 and 29 of the Equality Act 2010 (the 2010 act); (iii) the secretary of state had failed to comply with his public sector equality duty, under section 149 of the 2010 act; and (iv) the SCR policy was irrational.

The secretary of state justified the retention and noting policies on the grounds that the gender history was required to calculate state pension age, as it varied by gender in some circumstances, and to reduce the risk of identities being stolen and of fraud.

The court ruled: (1) With respect to the retention and noting policies, the interference with the claimant's private life from the application of the retention and noting policies met the test of necessity. Although those policies had a proper legal foundation, they lacked clarity and precision, and were not readily accessible. The retention and noting policies would need to be kept under review, since their primary justification would reduce over time, although they would still provide some protection against fraudulent claims.

Assuming that the SCR policy constituted an interference with the claimant's right under article 8 of the Convention, the evidence established that the application of the SCR policy could give rise to difficulties. The SCR policy was over elaborate and tended to have the effect it wished to avoid: drawing attention to transgender customers. The need for the retention of the information would reduce in time and, as it did so, the need to justify its retention would increase.

Article 14 of the Convention did not add much to the claimant's claim (see [89], [93], [96], [101] of the judgment).

R (on the application of Gillan) v Metropolitan Police Comr [2006] 4 All ER 1041 applied; R (on the application of Wood) v Metropolitan Police Comr [2009] 4 All ER 951 applied.

(2) The claimant's direct discrimination argument failed as a matter of analysis. The DWP did not have a policy or practice of noting the sensitive personal data of any particular individual. It collected and retained data which was relevant to the identity of customers for the purposes of the payment of benefits and pensions.

The information about the fact of a GRC was retained because, for the reasons already outlined, it was necessary. The claimant had failed to show that the DWP treated her differently and unfavourably because of her transgender status, rather than as an incident of her transgender status. Nor had the operation of the SCR policy brought about adverse consequences which were materially different to the secretary of state's non-transgender customers who had also been subject to the SCR policy, as there had been no evidence to support that conclusion.

With respect to indirect discrimination, assuming that transgender customers had suffered a particular disadvantage compared to other customers from the operation of the secretary of state's policies, for the reasons previously given as to articles 8 and 14 of the Convention, the secretary of state's arguments were not a complete answer (see [110]-[112], [114], [115] of the judgment).

(3) The evidence clearly demonstrated that the secretary of state had had due regard to the need to eliminate discrimination, harassment and victimisation of transgender customers. That duty had been discharged before and at the time that the relevant policies had been considered. It had been integrated with the public functions of the DWP and continued to be discharged. Accordingly, the claimant had failed to show a breach of section 149 of the act by a considerable margin (see [128], [129] of the judgment).

R (on the application of Baker) v Secretary of State for Communities and Local Government [2008] All ER (D) 412 (Feb) applied; R (on the application of Bailey) v Brent London Borough Council [2011] All ER (D) 193 (Dec) applied.

(4) To the extent that the claimant's argument under articles 8 and 14 of the Convention failed, it was difficult to see how the irrationality argument could succeed. To the extent that the argument succeeded, it was unnecessary to advance the argument on the grounds of irrationality (see [130] of the judgment).

Claire McCann (instructed by Bindmans LLP) for the claimant; Charles Bourne QC and Heather Emmerson (instructed by the Treasury Solicitor) for the secretary of state; Caoilfhionn Gallagher (instructed by Equality and Human Rights Commission) for the for the intervener.

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