Our response to the GOC's consultation on updating gender on the register
Our response to the GOC’s consultation, March 2023
The GOC consulted on a proposed policy and procedure for updating gender on its register, as part of which it set out the circumstances in which the GOC would consider it appropriate or necessary to disclose a person’s former gender.
Our response
Q5) To what extent do you agree with the content of the policy?
AOP response
Neither agree nor disagree
While we agree with the GOC's aim to support registrants who wish to update their gender on its register, we think that the parts of the policy about the circumstances in which the GOC would disclose a registrant's former gender could lead to indirect discrimination. We are not convinced that the GOC has interpreted the law correctly in these aspects of its policy.
Q6) Is there anything unclear or missing in the policy?
AOP response
Yes
In paragraph 4.2.4 the policy states that the GRA permits disclosure of a registrant’s gender reassignment “where it is necessary in the public interest or is required to by statute”.
It seems that the GOC is relying on section 22 paragraph 4 of the Gender Recognition Act here, but “public interest” is not listed in the exemptions and as such the GOC would potentially be committing a criminal offence if it relied on this section when making such disclosures.
Schedule 23 to the Equalities Act 2010 provides an exemption for things done that are required by statute or statutory instrument, but we are not aware of a situation where such a disclosure would be required by statute.
We remain unclear what legislation the GOC is relying on for its statement that it would disclose a person's previous gender for reasons of public protection, and there is no clarity about in what circumstances such a reason would apply.
Q7) Are there any aspects of the policy that could discriminate against stakeholders with specific characteristics? (Please consider age, sex, race, religion or belief, disability, sexual orientation, gender reassignment, gender identity, gender expression, pregnancy or maternity, caring responsibilities or any other characteristics.)
AOP response
Yes
In paragraph 4.2.2 the policy states that the GRA permits disclosure “to prospective employers and regulatory bodies to confirm fitness to practise (FTP) history or pending FTP proceedings”
We do not think this has come from the Gender Recognition Act and would welcome clarity on how the Council came to this position.
Further, we highlight that the General Optical Council is a “qualifications body” and is therefore governed by section 53 of the Equality Act 2010. Disclosing a registrant’s former gender has the potential to breach their right not to be subjected to any other detriment.
Additionally, the current policy creates a risk that relevant registrants will be put at risk of indirect discrimination (see section 19 of the Equality Act 2010). This is because “outing” a transgender person can lead to them being outed, misgendered and “deadnamed”, which a cis person would not experience when changing name.
It is difficult to see why such disclosure is necessary. Presumably the GOC can either transfer fitness to practise history and proceedings into the registrant’s new name or otherwise check the records under both sets of names without needing to disclose this to the prospective employer or overseas regulator. The DBS has a process for doing this (see www.gov.uk/guidance/transgender-applications) whereby the applicant discloses their gender history to the DBS but the DBS does not disclose it to the third party enquirer (eg a future employer). It is difficult to see why the GOC cannot take a similar approach.
Q8) Are there any aspects of the policy that could have a positive impact on stakeholders with specific characteristics? (Please consider age, sex, race, religion or belief, disability, sexual orientation, gender reassignment, gender identity, gender expression, pregnancy or maternity, caring responsibilities or any other characteristics.)
AOP response
Yes
If applied thoughtfully and fairly the policy will be a considerable advance for people who have changed gender. However, please note the concerns we raised in answer to question 7.