It cannot be stressed enough that everyone has the right to privacy. A person’s transgender status should always be treated with the same high level of confidentiality as any other sensitive personal information.
Some people may be happy to have certain people know they are transgender, but not for some others to know. Therefore, even if they appear open about their transgender status, always leave it up to the trans person to decide who they wish to tell. Revealing someone is transgender (‘outing’ them) not only violates their right to privacy, it also places them at risk of discrimination and harassment. It can sometimes even place them at risk of physical or sexual assault.
The Gender Recognition Act 2004 defines any information relating to a transsexual person’s gender recognition application as ‘protected information’. It is a criminal offence for anyone acquiring this protected information in an ‘official capacity’ to disclose it to a third party without the transsexual person’s consent. There are a few exceptions, for example if the information is required by the third party for the prevention or investigation of a crime or if the information is needed by medical professionals at a time when the trans person is too ill to be able to provide consent.
The information is deemed to have been acquired in an ‘official capacity’ if it was acquired by someone in connection with their function:
- as a member of the civil service, a police constable or the holder of any other public office or in connection with the functions of a local or public authority or of a voluntary organisation,
- as an employer, or prospective employer, of the person to whom the information relates or as a person employed by such an employer or prospective employer,
- in the course of, or otherwise in connection with, the conduct of business or the supply of professional services.
Remember that finding out about someone’s trans status through being their work colleague, providing them with any public service or being their trade union representative are all included in the category of ‘official capacity’. Therefore always maintain confidentiality and be absolutely sure to get the trans person’s written permission before discussing their case with anyone else if this could identify them. Telling others without the trans person’s permission could result in a criminal conviction and a £5000 personal fine!
Disclosure Scotland procedure
It is common nowadays for employees and volunteers to have to undergo Disclosure Scotland checks if they will be working with children or vulnerable adults. Disclosure Scotland forms contain a section for declaring previous names but instead of putting previous names on the form it is acceptable for trans people to send Disclosure Scotland a separate letter giving details of any previous names. Quote in the letter the 16-digit barcode number at the top right corner of the Disclosure Scotland application form to prevent delays. Send the letter, together with a photocopy of any statutory declarations of change of name or any other official document to confirm the previous names, to: The Operations Manager, Disclosure Scotland, P.O. Box 250, GLASGOW, G51 1YU. Mark the envelope “Private and Confidential”. For further assistance, contact the Disclosure Scotland Helpline at 0870 609 6006 and ask to speak to the Operations Manager.