Solicitors and the Gender Recognition Act

GRA Section 22(1)

There are several ways in which a trans person may become involved with solicitors, either acting for them or for somebody else, in perhaps parental rights issues, resolution of property ownership or employment matters. For people holding a full Gender Recognition Certificate any information provided to solicitor is in an official capacity and it is an offence for them to disclose it. Section 3 of the Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) Order 2005 that clarifies the Act, does allow that is not an offence to disclose protected information for the purpose of obtaining legal advice, but this does not authorise the person providing that advice to promulgate the data.

It thus a requirement that any solicitor is required to ensure that any protected information about a trans person is kept securely and no access is granted, even accidently, to any third party. This stricture applies to all forms of information whether verbal comment, written, or on any IT system. It may be that a solicitor may feel they are unable to conduct their business without releasing protected information to third parties within their practice. It is their responsibility to advise the trans person of who else in their practice might reasonably ‘need to know” such as their supervisor, assistant, trainee, or IT administrator. It is good practice for them to provide a consent form listing the people who they think must be given access to the information, their professional purpose, and confirmation that they have been fully briefed on the requirements of the Act.

Notification

It is a good idea to ensure that as soon as a trans person becomes aware that a solicitor is going to handle their personal information to ensure there is a record that they are informed that they need to seek permission before any further disclosure is made. Similar advice applies in any circumstances of disclosure, including doctors and medical staff. This communication is preferably supplied by email, but a letter, (to be delivered by next day delivery so it is signed for) and should be provided as soon as possible after becoming aware of the risk of disclosure.

A sample of a suitable letter can be found below. This will be need to be modified to suit the particular circumstances, especially if the solicitor is acting for a third party.

Document: Letter to solicitor concerning GRA restrictions (PDF, 184KB)

Enforcement

The Act makes no exceptions for solicitors. Some have suggested that they are exempted under section 22.4(e)—the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal—on the grounds that anything they might do might have come from or end up in court. This is not correct and any effort to suggest this must be immediately disputed.

Disclosure can take many forms; a letter wrongly addressed – repeatedly, a former name appearing in disclosure documents, a writ or subpoena for appearance being served in both names, a doctor (wrongly) sending an un-purged set of medical notes to a solicitor who then also fails to read and edit them, before passing on the set to the other party’s solicitor without permission.

What action should one take if a solicitor breaches the Act? Here are some suggestions.

Call Police

Call the police – or rather go to the station. It is suggested that you do this first before starting the other procedures below but do make sure you are certain of your facts before approaching the police. The case would be a tried in the Magistrates Courts, as it is only a level 5 offence, and under the current rules the case has to be indicted to the magistrates within 6 months of the incident (not the reporting of the incident).

Insist the police follow up your complaint. You will need to take a copy of the Gender Recognition Act 2004, with section 22 clearly marked. Most forces or officers will not have even heard of it, or if once they did, it has long been forgotten. Insist that you speak to someone beyond the front desk, though you might have to make an appointment to do so. Insist that a crime has take place. Don’t expect the police to be aware of the implications of the Act and be prepared to explain in fine detail; if they have any doubts about suggest they contact ACPO (Association of Chief Police Officers) and be put in touch with the ACPO Trans Advisory Group. Several officers on that group are very knowledgeable having handled such cases in the past.

Do not expect the police to necessarily, if ever, pursue a prosecution. It is highly unlikely your complaint will lead to very much, unless you have been physically threatened or harmed by the solicitor’s staff who did not like you making a complaint. However, a visit from the police to the offending practice may make them understand that you are serious. Do not forget the IT equipment in the practice may contain incriminating evidence and make sure the police are aware of this possibility.

Complain

You may make a formal complaint to the firm’s Complaints Officer. They have to have one, but do not expect much help. They probably will not be familiar with the Gender Recognition Act, and when they have read it, may well offer the section 22.4(e) defence. Most likely their tone will be defensive rather than conciliatory, as they fear being held liable for anything. It may help to refer them to this web page.

Mediation

Consider requesting mediation. Most local authorities run free or very low cost mediation services, which are staffed by local solicitors and barristers, often on a part time, and sometimes pro-bono (for free) basis. For example, the Greater Manchester Mediation Service, which is based at Manchester Town Hall, has 37 volunteer, plus four part-time paid mediators, who use mediation to iron out disputes between separate parties. They come from all walks of life and cultures, and are committed to helping neighbours live in peace.

There are also large professional firms of mediators but their work will generally be focussed towards serving the local business communities. The lawyers will have been specially trained for what is often referred to as mediation or ADR (alternative dispute resolution). In mediation, both sides initially make written submissions as to the complaint. The local Citizens Advice Bureau, law centre or a trans support group can help you write your submission. Both sides will then join the mediator in a normal office environment. You will be able to take a friend or representative, but costs for any lawyer you hire will not be met under any circumstances. A good friend who has gone through the issues with you in advance will be best. Mediation is very successful and although big damages will not be forthcoming itbut may well achieve the apology most have been looking for all along.

Legal Ombudsman

Finally, make a complaint to the Legal Ombudsman who now handle solicitors’ disciplinary issues. This used to be amatter for the law society which was a very arduous route, demanding lots of paper evidence, often taking about 2–3 years to resolve, often unsatisfactorily. The new arrangments may prove better.