C, R (on the application of) v Secretary of State for Work and Pensions & Anor

Retention of sensitive gender-recognition information engages Article 8 rights and must be lawful, necessary and proportionate. Retention may be justified for pension administration and fraud prevention, but policies require continuing review as their justification diminishes. Historic facts do not automatically remain relevant merely because they are facts. Protective access controls may themselves create privacy risks if they single out the protected group or cause systemic delay. Under the Equality Act 2010, retention arising incidentally from identity records is not direct discrimination without less favourable treatment because of gender reassignment. The public sector equality duty requires due regard, not judicial reweighing of policy choices.

The claimant, a transgender woman holding a Gender Recognition Certificate and receiving Jobseeker’s Allowance, challenged three Department for Work and Pensions policies: retaining gender-change information, recording the existence of a certificate, and automatically marking relevant records as Special Customer Records. She alleged breaches of articles 8 and 14 of the Convention, direct and indirect discrimination under the Equality Act 2010, breach of the public sector equality duty and irrationality.

The central issues were whether retention and access controls were lawful and proportionate, whether the policies discriminated against the claimant, and whether the Department had discharged its equality duty.

The court determined the issues of principle and deferred arguments about relief.

1. Retention and visible recording of gender-recognition information engaged private-life rights under Article 8. The Department established legitimate justifications for retaining relevant information, including State Pension administration and reducing identity fraud. The proposed justification based on future demographic planning was doubtful.
2. The policies had a statutory foundation in the Social Security Administration Act 1992, but the GRC Noting Policy and Retention Policy were insufficiently accessible, clear and precise. They presently satisfied necessity and proportionality, but required continuing review because the pension justification would diminish after 6 March 2019. A 50-year post-mortem retention period was not adequately justified on the evidence.
3. Costs could be relevant to proportionality, but an infringement of article 8 rights or a discriminatory policy could not be justified solely by the cost of correction.
4. The Special Customer Record Policy was over-elaborate and tended to draw attention to transgender customers. The court assumed, without deciding, that it engaged Article 8. No order was made on that conclusion at this stage.
5. The claimant failed to establish direct discrimination. The Department retained identity data for all relevant records, and the claimant had not shown less favourable treatment because of gender reassignment. Indirect discrimination was assumed for argument, but the justification issue remained linked to the Article 8 analysis.
6. The Department had due regard to the need to eliminate discrimination and advance equality of opportunity. The duty was fulfilled before and during policy development, integrated into departmental functions and continuing.
7. The irrationality ground added nothing where the Article 8 and discrimination arguments failed. Arguments about relief were to await determination of the issues of principle.

First-instance judicial review in the High Court (Administrative Court). The judgment states that arguments about relief were to await determination of the issues of principle.