Mar 2024 – Gender identity data in the workplace
Safeguarding all personal data not only upholds data subjects’ rights but also ensures trust and good employee relations. Special category data must be treated with more protection because it is sensitive, but information about gender does not automatically fall into this category and in many cases will fall into a data-gap. A recent case reminds us that employers nonetheless need to take great care with gender identity data.
Is gender identity data special category data?
Under the GDPR, special category personal data is a category of data to which more stringent processing conditions apply. This includes data revealing ethnic origin, religious or philosophical beliefs, trade union membership and political opinions, generic and biometric data and data concerning health, sex life, and sexuality. These types of data are singled out because their use could create risks to an individual’s fundamental rights and freedoms. However, information about gender identity is not automatically special category data when we look at the strict GDPR definition. The ICO explains that instead, whether gender identity data is special category will depend on the circumstances:
“For example, if the information also reveals specific details about the person’s health status or medical care, or an organisation uses it to make specific inferences about health, that would involve special category data. If there’s no specific information or inference about someone’s health (or any other specific category such as sexual orientation or sex life), it isn’t special category data. But in many cases information about someone’s gender identity is still likely to be particularly sensitive”.
However, the ICO also acknowledges that information relating to whether “a person identifies as non-binary or another gender type” may be “considered special category data”, although does not explain why.
Employers should therefore proceed with caution when dealing with gender identity data and consider carefully how it is processed. Employers should also be aware that any interrogation into the precise nature of this data (such as querying with the data subject whether it is health data or sexual orientation data) is very likely to harass and discriminate against the individual under the Equality Act 2010.
The case of Miss AB v Royal Borough of Kingston upon Thames, in which an employment tribunal ruled that Miss AB was directly discriminated against by her employer, because of her being “trans” (i.e. having undertaken gender reassignment), is a reminder of the risks of failing to handle someone’s gender identity data properly and with the sensitivity it merits.
The case of Miss AB v Royal Borough of Kingston upon Thames
In this case, Miss AB gave her employer (the Council) 8 months’ notice, that she was intending to “transition” her gender from male to female. She then ran into difficulties with her manager, whom she emailed alleging they were discriminating against her following her transition. Her manager replied the same day, saying this was “untrue, insulting, totally unacceptable and he now required a full apology”.
No steps were taken to investigate her allegations, because they were considered by the Council to have no merit. No effort was made to support her, no concern was shown for her wellbeing and the focus was instead upon her manager. She was again instructed to apologise and told that if she failed to formalise her complaints (with evidence) disciplinary action would be taken against her. Despite her replying to say that she would formalise it, no one, including HR, ever treated her complaint as a formal grievance.
The Tribunal found that her manager’s reaction was “more than just unreasonable” because it was “so extreme”. Miss AB was signed off sick, suffering “huge stress and trauma” as a result of the bullying; she experienced such severely intrusive thoughts that her GP considered whether she needed to be sectioned.
Council’s policies and procedures
On considering her claim, the employment tribunal considered the policies and procedures the Council had in place to support transitioning staff. Despite the Council employing around 4,500 people (including around 60 in HR), the employment tribunal found that it had put “nothing” appropriate in place for trans employees. More specifically, the tribunal found:
- Despite the introduction of the Equality Act in 2010, the Council’s Dignity at Work policy was not updated between 2006 and the end of 2021. The policy was not only out of date but also simply incorrect, for example by incorrectly aligning sexual harassment with trans harassment.
- The Claimant’s pension records, the Customer Relationship Management tool, the complaint system, the Council’s directories, including the public-facing online one, and email systems were not updated (so also revealed her “deadname”) for nearly 2 years. A “deadname” is someone’s former name, often associated with trans and non-binary people who have changed their name. She was unable to contact anyone internally to ask for this to be rectified without revealing her transition.
- Her office pass was not updated for 2 years, meaning she could not attend work nor use a printer without being deadnamed and misgendered.
- She had issues obtaining a vehicle pass, which required her to contact an external party, who deadnamed and misgendered her on calls. Miss AB’s deadname was used in an email because an old server had stored it.
In summary, the Tribunal found the Council’s policies and practices inadequate and it could “understand why Miss AB felt badly let down by her employer.” Miss AB was given an award, specifically to compensate her injury to feelings relating to the deadnaming, of £21,000 (in the middle Vento band) with interest (at 8%) on this from the first date of discrimination – totalling £25,423.
It is not clear whether Miss AB had a Gender Recognition Certificate (a legal document recognising a change in gender), but if so, the numerous disclosures and deadnaming incidents would very likely have been criminal offences.
Practical steps for employers
The steps that the Council has now put in place are in fact good examples of best practice to avoid this kind of discrimination occurring in the first place:
- Policies: The Council now has an appropriate policy in place, which was developed with Miss AB and reviewed with the staff LGBT+ network. You should check and review your own policies, preferably with the involvement of members of the LGBT+ community even if there is no formal network in your organisation. It is also worth checking your data protection policies to ensure that any trans or non-binary data you are processing is adequately considered and protected.
- IT systems: The Council is now going to offer people who wish to change their listed gender, a choice between having a new account or amending their existing one. Have a look at your records and processes to ensure old servers aren’t going to accidentally to give inaccurate and historic information; or whether you have inclusive titles as an option in your record-keeping systems.
- Co-ordinating with 3rd parties: Take care with external providers when someone transitions. We suggest you identify with an individual how you can support them in contacting third parties to update their records. This will potentially capture a wide range of people, from clients to service providers, e.g. private health insurers or outsourced payroll. Ideally this would all be covered in a transitioning plan which will also ensure that the burden of amending is not placed on the individual and that they do not face discrimination at work.
- Dialogue and apology: The Council did not treat Miss AB’s complaints seriously, or as part of a grievance procedure. Had they taken her initial complaint seriously and spoken to her to understand her experience and how better to support her, the situation may never have escalated. The employment tribunal noted that no apology had ever been offered to her. Acknowledging a failing and saying “sorry” for it, as part of a formal grievance or not, can go a long way.
- Training: Specific training (via e-learning, with a way of checking whether people had attended it) has now been implemented at the Council. This is a very sensible step, especially for HR teams. If you would like to talk to our dedicated client training team on how we can support with this, please contact them at Lucy.hendley@lewissilkin.com.
In line with the Equal Treatment Bench Book guidance, we have used the word “trans” in this article to describe the protected characteristic of gender reassignment, as the words used in the Equality Act are “widely considered to be out-of-date and stigmatising”.
Miss AB v Royal Borough of Kingston upon Thames judgment available here
If you have any specific questions you would like advice on or if you would like information about what is discussed in this article, then please contact: Abi.Frederick@lewissilkin.com of Lewis Silkin LLP or koichiro_nakada@btinternet.com.