Call for evidence: DBS checks which reveal trans/gender history because of gender-specific offences committed in the past

The current criminal record disclosure rules are unnecessarily harsh and disproportionate – they mean that standard and enhanced DBS checks continue to disclose old, minor and irrelevant offences that often happened decades ago. This means people can feel like they are effectively serving a life sentence for minor offences that they committed in their youth.

As part of our work on this, we’ve become aware of Helen’s* story, and we want to see if Helen’s problem is shared by others.

This is Helen’s story:

“I am a trans woman. I have a Gender Recognition Certificate (GRC), by which I am recognised in law as female, “for all purposes”.

 

“In the late seventies, around 1979 to be precise, I was working at a club in Soho called The Golden Girl Club, also known as a ‘clip joint’, as a means to fund gender reassignment surgery which was not readily available on the NHS at the time. There was little tolerance for LGBT people among police officers working at West End Central who made it their mission to arrest and humiliate trans women. During this time, I was arrested on a couple of occasions for ‘importuning as a man’ – this essentially means ‘offering services as a prostitute’

 

“In 1980, I completed my gender reassignment survey and moved to America where I went back to university and lived there until the late 90s. In 2004, I completed a master’s degree in psychotherapy and counselling and up until 2011, worked in both a corporate environment as a HR professional and a small private practice.  In 2012, I left the corporate world completely and moved my career into the clinical field.

 

“Given the nature of my work, I am required to provide an enhanced DBS certificate that discloses my spent convictions for historical gender specific offences which I am required to disclose under the legislation due to the type of work I do which discloses my birth gender and my trans status.  Because I do not wish my gender history to be more widely known (and do not wish to disclose my trans status to employers), this has prevented me from applying for many roles and has forced me to stay in organisations that haven’t been in my best professional interest.”

(You might have seen that Helen’s story was covered briefly in The Sunday Times, Daily Mail and The Sun last weekend and early this week. Unlock was referenced as supporting her case, and we’ve copied below the comment we provided to the press at the time).

Are you transgender? And do you have a gender-specific criminal record that reveals your previous gender? Get in touch!

We want to hear from people who might have experienced similar issues to Helen. This will help us in our work to push for changes.

All information that is submitted to us is handled confidentially. We do not share personal details to any third-parties without the explicit consent of the person concerned. We are used to dealing with individuals who are quite rightly very protective about their personal data.We take our role of protecting confidentiality very seriously. Find out more here about our approach to collecting evidence of issues.

If you’re transgender and have a gender-specific criminal record, please get in touch with us by emailing (in confidence) policy@unlock.org.uk with the following details:

1. Your name and date of birth
2. Contact details (telephone or email) and how you would prefer to be contacted
3. Do you have a Gender Recognition Certificate?
4. Have you committed a gender-specific offence in the past which is now ‘spent’ (under the Rehabilitation of Offenders Act 1974) but which you have been required to disclose under an enhanced DBS check because of the type of work you do?
5. What’s the offence?
6. Was this offence committed by reference to your birth sex, rather than your affirmed sex?
7. Does your enhanced DBS certificate, therefore, reveal your trans status?

For more details on contacting us, click here.

The legal context to Helen’s story

The legal context to Helen’s story has been written by Claire McCann, barrister at Cloisters

Nearly forty years ago, Helen was convicted on two occasions of the offence of ‘man importuning’ under s32 of Sexual Offences Act 1956.  At the time, she was only 18 and 19 years old and, in law, she was male.  She has since acquired legal recognition of her female gender by way of a Gender Recognition Certificate.

A few years ago, Helen applied for a job as a counsellor which required her to obtain an enhanced DBS certificate. This is because she was applying for a specified position of trust which engaged the obligation to obtain an enhanced DBS certificate which, in turn, disclosed all convictions (whether or not spent), unless the spent conviction was protected from disclosure (as a result of the statutory filtering regime which came into force in May 2013).

When the DBS certificate was provided to Helen’s employer, she suffered the humiliation of being asked why male-specific convictions were disclosed on the certificate and she had to explain her gender history. In this way, she was “outed” as trans, something which she had not chosen to disclose to her employer or work colleagues. This experience has discouraged Helen from applying for other work.

The convictions for ‘man opportuning’ cannot be “filtered” or otherwise “disregarded” by the DBS when determining what must be disclosed on her enhanced certificate. This is because the filtering regime created under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 does not apply to specified offences (and s32 of Sexual Offences Act 1956 is such a specified offence).

Helen has asked the DBS to delete or amend the wording of her convictions on her enhanced certificate (for example, if they were described as “importuning” or “soliciting”, this would not reveal her gender history) but has been told that the DBS does not “own” the data held on the Police National Computer which is, in fact, “owned” by the relevant police force.  Helen, therefore, asked the Early Deletion Unit of the relevant police force to delete or amend the wording of her convictions but her request has been refused on the basis that the convictions do not fall to be “filtered” and the information on the PNC is a matter of historical record and so cannot be amended.

Helen is, therefore, stuck with a DBS certificate which will continue to reveal her trans status.  She, therefore, wishes to challenge the legality of the statutory regime because, unless it is amended, she is forced to either remain in her current workplace or to disclose her trans history should she choose to apply for roles elsewhere.  This constitutes a severe and discriminatory interference with Helen’s right to respect for her private life, contrary to Articles 8 and 14 of European Convention on Human Rights.

Unlock is looking for examples of where the DBS “filtering” does not go far enough.  Helen’s is one example but please get in touch if you have suffered a similar experience.

Unlock’s position

The comment that our co-director, Christopher Stacey, gave to the Sunday Times is below, and this explains our position on this issue. We hope that by sharing Helen’s story and putting out this call for evidence, any other people that have suffered from a similar situation to Helen will be able to come forward and help us address this problem.

“The current criminal record disclosure rules are unnecessarily harsh and disproportionate – they continue to disclose old, minor and irrelevant offences that often happened decades ago. This means people can feel like they are effectively serving a life sentence for minor offences that they committed in their youth. We are calling for reforms to the system, and we would expect this to include removing certain old, minor and irrelevant gender-specific offences.

 

For more recent and more serious gender-specific offences, there does not seem to be the flexibility within the current system to still disclose the details of the offence whilst protecting the gender status of the individual. For those who have since acquired legal recognition of a different gender, this clearly raises significant issues for the individual concerned as it serves to disclose their gender history, thereby “outing” them as transgender. We would encourage the government to look at what can be done to resolve this issue.”

If you’re transgender and have a gender-specific criminal record that reveals your previous gender, please get in touch (see details above).

* Helen is not her real name – it has been changed in this post to protect her identity