R (C) v Secretary of State for Work and Pensions (High Court)

The claimant challenged three Department for Work and Pensions policies: the GRC Noting Policy (the visible noting of Gender Recognition Certificates on DWP records), the Retention Policy (retention of gender history and previous names on the Customer Information System) and the Special Customer Record (SCR) Policy (restricted-access marker for sensitive records). The court found that the GRC Noting and Retention policies engage Article 8 ECHR but, on the evidence, presently meet the test of necessity and pursue legitimate aims (notably correct pension calculation and fraud prevention). The judge held these policies have statutory and lawful basis (including section 7B SSAA 1992 and data- processing provisions) but criticised their lack of clarity and public accessibility and concluded they should be kept under review and tailored as the justifications diminish over time. The SCR Policy, intended to protect privacy, was held to be over-elaborate and liable to draw attention to transgender customers and to cause service delays, although the court declined to make immediate orders to disapply it. The claimant’s public sector equality duty and discrimination challenges under the Equality Act 2010 were rejected.

The claimant, a transgender woman holding a Gender Recognition Certificate (GRC), sought judicial review of the Department for Work and Pensions' practices for recording and handling gender recognition information. She complained that (i) the GRC Noting Policy (visible notation on the CIS), (ii) the Retention Policy (long retention of gender history and previous names) and (iii) the SCR Policy (special marker requiring authorisation for access) breached her rights under Article 8 ECHR, discriminated directly and indirectly under the Equality Act 2010, violated the public sector equality duty (s.149 EA 2010) and contravened the Data Protection Act 1998.

The court framed the issues as (a) whether the impugned policies engage Article 8 and, if so, whether any interference is lawful and proportionate; (b) whether the policies amount to direct or indirect discrimination under the EA 2010; (c) whether the defendant complied with the PSED; and (d) whether the DPA 1998 was engaged in respect of retention.

On Article 8 the judge accepted that the GRC Noting and Retention policies engage private life and require justification under Article 8(2). The DWP advanced legitimate aims including correct state pension calculation (given gender-differentiated pension ages for certain cohorts), fraud prevention and policy planning. The court accepted those aims and found the retention and noting practices presently meet the necessity and proportionality test, albeit that the policies lack sufficient clarity and accessibility and should be kept under review as their justification diminishes (noting particular concern about the long 50-year retention following death). The SCR Policy was treated as intended to protect privacy but was found to be over-elaborate in practice, producing authorisation delays and the risk of singling out transgender claimants; the court was not, however, prepared to grant immediate relief based solely on that finding.

On equality law the court rejected direct discrimination arguments and, whilst prepared to assume transgender claimants may suffer particular disadvantage from the PCPs, concluded the DWP had legitimate and proportionate reasons and had given due regard under the PSED. The DPA 1998 points overlapped substantially with the Article 8 analysis; the court noted the ICO is the primary enforcer of data protection obligations.

The judge therefore dismissed the challenge overall, but flagged the need for clearer, publicly accessible retention rules and for review of SCR operation and long retention periods.

The claim is dismissed. The court held that the GRC Noting Policy and Retention Policy engage Article 8 but currently meet the test of necessity and pursue legitimate aims (notably pension calculation and fraud prevention); however the policies lack sufficient accessibility and precision and should be reviewed, especially given long retention periods. The SCR Policy, though intended to protect privacy, was held to be over-elaborate and liable to draw attention to transgender customers and to cause delay, but the court declined to grant immediate relief on that basis. The claimant’s Equality Act (direct/indirect discrimination) and public sector equality duty challenges were not made good.