The Government has recently announced its intention to begin a consultation process on the Gender Recognition Act (the Act) this autumn. The announcement comes just before the 50th anniversary of the Sexual Offences Act 1967, which partially decriminalised homosexuality.
The Act currently says that people wanting to change their gender must apply for a gender recognition certificate (GRC) in order to be legally recognised in their chosen gender. In order to apply, the person must be diagnosed with gender dysphoria and have evidence that they have been in transition for at least two years.
The consultation will look at streamlining the current process to obtain a GRC by removing the requirement of an intrusive medical diagnosis prior to the application. As part of the consultation process, the Government has launched a national survey which will aim to consult 1.5 million LGBT people in Britain with a view to tackling some of the other remaining inequalities in legislation.
The Act, as it currently stands, has important implications for the NHS, particularly in relation to the prohibition of disclosure of information relating to a person’s previous gender. Under section 22 of the Act, it is a criminal offence for a person who has acquired, in an official capacity, information regarding an individual’s previous gender identity to disclose that information without consent.
At present, there is no exemption to that rule for the sharing of information relevant to health and medical treatment. This clearly affects NHS bodies as employers and in the supply of healthcare services to the public, as they are likely to acquire such information in relation to their employees or patients.
Whilst it is currently unclear whether the consultation process will address this provision, an amendment to remove the criminal sanctions may be a welcome change to the legislation for NHS bodies.