Solicitors and the Gender Recognition Act

GRA Section 22(1)

There are several ways in which a trans person may become involved with solicitors, either acting for them or for somebody else, in perhaps parental rights issues, resolution of property ownership or employment matters. For people holding a full Gender Recognition Certificate any information provided to solicitor is in an official capacity and it is an offence for them to disclose it. Section 3 of the Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) Order 2005 that clarifies the Act, does allow that is not an offence to disclose protected information for the purpose of obtaining legal advice, but this does not authorise the person providing that advice to promulgate the data.

It thus a requirement that any solicitor is required to ensure that any protected information about a transsexual person is kept securely and no access is granted, even accidently, to any third party. This stricture applies to all forms of information whether verbal comment, written, or on any IT system. It may be that a solicitor may feel they are unable to conduct their business without releasing protected information to third parties within their practice. It is their responsibility to advise the trans person of who else in their practice might reasonably ‘need to know” such as their supervisor, assistant, trainee, or IT administrator. It is good practice for them to provide a consent form listing the people who they think must be given access to the information, their professional purpose, and confirmation that they have been fully briefed on the requirements of the Act.

It is a good idea to ensure that as soon as a trans person becomes aware that a solicitor is going to handle their personal information to ensure there is a record that they are informed that they need to seek permission before any further disclosure is made. Similar advice applies in any circumstances of disclosure, including doctors and medical staff. This communication is preferably supplied by email, but a letter, (to be delivered by next day delivery so it is signed for) and should be provided as soon as possible after becoming aware of the risk of disclosure.

A sample of a suitable letter may be found here. This will be need to be modified to suit the particular circumstances, especially if the solicitor is acting for a third party.

The Act makes no exceptions for solicitors. Some have suggested that they are exempted under section 22.4(e)—the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal—on the grounds that anything they might do might have come from or end up in court. This is not correct and any effort to suggest this must be immediately disputed.

Disclosure can take many forms; a letter wrongly addressed – repeatedly, a former name appearing in disclosure documents, a writ or subpoena for appearance being served in both names, a doctor (wrongly) sending an un-purged set of medical notes to a solicitor who then also fails to read and edit them, before passing on the set to the other party’s solicitor without permission.

What action should one take if a solicitor breaches the Act? Here are some suggestions.

Call the police – or rather go to the station. It is suggested that you do this first before starting the other procedures below but do make sure you are certain of your facts before approaching the police. The case would be a tried in the Magistrates Courts, as it is only a level 5 offence, and under the current rules the case has to be indicted to the magistrates within 6 months of the incident (not the reporting of the incident).

Insist the police follow up your complaint. You will need to take a copy of the Gender Recognition Act 2004, with section 22 clearly marked. Most forces or officers will not have even heard of it, or if once they did, it has long been forgotten. Insist that you speak to someone beyond the front desk, though you might have to make an appointment to do so. Insist that a crime has take place. Don't expect the police to be aware of the implications of the Act and be prepared to explain in fine detail; if they have any doubts about suggest they contact ACPO (Association of Chief Police Officers) and be put in touch with the ACPO Trans Advisory Group. Several officers on that group are very knowledgeable having handled such cases in the past.

Do not expect the police to necessarily, if ever, pursue a prosecution. It is highly unlikely your complaint will lead to very much, unless you have been physically threatened or harmed by the solicitor's staff who did not like you making a complaint. However, a visit from the police to the offending practice may make them understand that you are serious. Do not forget the IT equipment in the practice may contain incriminating evidence and make sure the police are aware of this possibility.

You may make a formal complaint to the firm's Complaints Officer. They have to have one, but do not expect much help. They probably will not be familiar with the Gender Recognition Act, and when they have read it, may well offer the section 22.4(e) defence. Most likely their tone will be defensive rather than conciliatory, as they fear being held liable for anything.

Finally, make a complaint to the Law Society who now handle solicitors' disciplinary issues. This is generally a very arduous route, demanding lots of paper evidence, and it is not quick often taking about 2–3 years to resolve. Often though the decision will be for you, the manner and logic of the decision will be incomprehensible to the average individual or lawyer for that matter, and frequently people end up feeling their complaint was never properly addressed. You may get £1-2,000 repaid to you from the fees the firm charged, unless the matter has concerned extremely serious negligence or fraud. It is very rare for solicitor's to be struck off the roll and have their practice certificates withdrawn. It is not a route to be taken lightly, frequently causing great distress over a long period, and of course when the decision is finally made this is much too late to protect the personal information.

Rules regarding the media, employers and anyone who has knowledge or holds documentation regardng any transe3xuals status.

 

An extract Sect 22 Confidentiality

 

Previous Names

It is rare for an article about a transgender person not to reveal their previous name. This conveys the false impression that transgender people are happy to have their previous names made public. A transgender person takes a new name to reflect their public change of gender. They discard the old name in the process and the deed poll on change of name is quite emphatic about this. Under no circumstance is the old name retained.

Why should you avoid revealing a transgender person's former name?

• You may place the transgender person at risk or harrassment.
• You may place yourself at risk of prosecution.
• It may be very difficult for you to undo your actions.

When a Gender Recognition Cerificate (GRC) is awarded, it becomes a criminal offence to reveal the owner's transgender history. At present the fine is £5000. It is the individual who reveals the name, not the organisation for which they work, who will face charges. There are no exemptions for journalism as there are with the Data Protection Act. Section 22 of the Gender Recognition Act was created with an "expectation of privacy" in mind.

It is important for a transgender person to be able to wipe the slate clean, to live a life free from persecution. Provided they have no outstanding debts, their credit history will be erased. They will be entitled to a new passport and driving licence. There is even a fresh birth certificate to help them through life. All of this is to no avail if their previous and current name are linked on a website. When this happens, such a person has no choice but to change their name again if they want the privacy to which they are entitled.

Whilst the legal position is not cut-and-dried, it is heavily weighted in favour of the transgender person. Even colleagues discussing a post-transitional person may be in breach of this law. Even before the award of a GRC, charges of harassment may be applied if the person is reported about on separate occasions using their previous name. Any article remaining on the internet following the award of a GRC may expose its author and editor to risk of prosecution.

The award of a GRC is never publicly announced, of course. There have been no high-profile prosecutions under Section 22 but that situation is unlikely to last. It is best to respect the terms of the person's deed poll and refer to them by their chosen name only.

 

This post was edited by Cristine Jennifer Shye. BL at February 6, 2012 10:18 PM GMT

In that case your solicitor or barrister or you should raise an objection, your previous medical records should be incorporated under your new name.