Impact assessment

The Gender Recognition (Disclosure of Information) (England) Order 2022: equality impact assessment

Published 30 June 2022

Applies to England

Introduction

The general equality duty that is set out in the Equality Act 2010 requires public authorities, in the exercise of their functions, to have due regard to the need to:

• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the act
• advance equality of opportunity between people who share a protected characteristic and those who do not
• foster good relations between people who share a protected characteristic and those who do not

Equality impact assessment

What are the intended outcomes of this work?

The Gender Recognition Act enables people to change their legally recognised sex by obtaining a Gender Recognition Certificate (GRC), which entitles the holder to be treated for legal purposes in line with their acquired sex. Section 22 of the act creates a criminal offence of disclosing protected information acquired in an official capacity. ‘Protected information’ is information about a person’s sex as recorded on their birth certificate before an application for a GRC was made, or information about their application for a GRC. There are exemptions to the offence, such as where disclosure is for the purpose of preventing or investigating crime, or where the person agrees to the disclosure of the information. Section 22(5) of the act gives the Secretary of State the power to make provision prescribing circumstances in which the disclosure of protected information is not to constitute an offence under the section.

The Cass review is a review of the Gender Identity Development Service (GIDS), which provides care to children and young people with gender dysphoria. The service is currently being reviewed by Dr Hilary Cass in order to evaluate current service provision and understand how the service could be improved. The Gender Recognition (Disclosure of Information) (England) Order 2022 (the order) is a statutory instrument that prescribes that those facilitating, assisting or undertaking the research on behalf of the review are permitted to disclose protected information under the Gender Recognition Act for the purposes of the review without committing a criminal offence. This is in order to maximise the participants in a research project led by the University of York and commissioned by NHS England (NHSE) on behalf of the Cass review. The order will create a further exemption to enable the disclosure of protected information in circumstances where it is necessary for those working on the research project to complete their work.

This order will allow analysis of health outcomes for those patients who have been through the Tavistock and Portman NHS Trusts Gender Identity Development Service (GIDS). This analysis will provide a clinical evidence base on which the Cass review can make recommendations to NHSE regarding how these services should be provided in the future to improve patient outcomes. Without this statutory instrument (SI), the researchers would be unable to complete this work in a rigorous or meaningful way. The ambition is for this research project to provide findings into the effectiveness and long-term outcomes of the treatments provided through children’s gender identity services, which may in turn lead to improved health outcomes for this group of patients.

Who will be affected?

Those affected by this change will primarily consist of those who were patients referred to the GIDS clinic between 2009 and 2020, and have since gone on to apply for or be issued with a GRC. Information is not held on which patients have gone on to apply for a GRC. As such we are not able to set out the exact number of people that will be directly affected by this change. However, we have been able to calculate from published statistics[1] that as of 2021, 754 people born from 1990 onwards have been issued with Gender Recognition Certificates. As such, this represents the maximum number of people who could have been through the GIDS service between 2009 and 2020 and have gone on to be issued with a GRC that we hold data on. This is subsequently our best estimate for the maximum number of people who could be directly affected by this change.

Those directly impacted by this change will see a temporary and limited reduction in the rights they have over data which relates to them and is currently classified as ‘protected information’ under the Gender Recognition Act 2004. However, this reduction will only be in relation to the research that the review team will be carrying out. Protected information will be collected and analysed in controlled environments by a team of researchers, working alongside NHS Digital, NHS gender identity clinics and NHS trusts and foundation trusts. No patient identifiable information will be made public through the course of this research. Any research outputs subsequently published will be fully anonymised.

There will also be substantial indirect benefits to future children and young people with gender dysphoria who go on to use NHSE commissioned children’s gender identity services. This research will provide a stronger clinical evidence base on which these services can be planned going forward. As such it may lead to improved healthcare outcomes for future users of the service.

Evidence

What evidence have you considered?

The Cass review, which this change will support, has undertaken wide consultation with clinical staff, patients and service users, parents and interest groups such as LGBT+ charities. There is widespread support for the review and the intended research project from these groups.

Demographic evidence between service users and the general population has also been considered. This evidence has been sourced from the 2017 National LGBT survey as well as Office of National Statistics (ONS) data and information gathered by the Department of Work and Pensions (DWP).

This legislation will only impact patients who were referred to GIDS from 2009 to 2020 who have gone on to acquire a Gender Recognition Certificate (GRC). Obtaining a GRC requires that you have lived in your acquired gender for at least 2 years and intend to do so for the rest of your life. Therefore, the past patients who will be directly affected by this change are highly likely to have the protected characteristic of gender reassignment. However, beyond this there is little data about the other protected characteristics of people with GRCs. As discussed in the previous section we do not know specifically which of the pool of past GIDS patients will have GRCs, however for the purpose of this analysis we will assume they are broadly similar to the wider group of people with the protected characteristic of gender reassignment in general.

Recent evidence from the Cass review’s interim report has also provided evidence on the changing case mix of those children and young people who are referred to the GIDS service. The report notes that an “increase in referrals has been accompanied by a change in the case-mix from predominantly birth-registered males presenting with gender incongruence from an early age to predominantly birth-registered females presenting with later onset of reported gender incongruence in early teen years. In addition, approximately one third of children and young people referred to GIDS have autism or other types of neurodiversity.”[2] Such evidence from the review’s work has also been considered and analysed in this assessment.

Analysis of impacts

Disability

The 2017 LGBT survey shows that 32.5% of transgender and non-binary people consider themselves to have a disability [3], as shown in Table 1 below.

Table 1: Disability self identification within transgender and non-binary population

Responses	Trans women	Trans men	Non-binary	All respondents
Yes	25.5%	31.1%	36.7%	32.5%
No	71.4%	64.4%	59.2%	63.5%
Prefer not to say	3.1%	4.5%	4.2%	4%
Totals	3740	3170	7410	14320

Source: https://government-equalities-office.shinyapps.io/lgbt-survey-2017/

This shows that people with the protected characteristic of disability will likely be disproportionally highly represented within the group of people directly affected by this measure, as we know that all of those within the affected group will have a diagnosis of gender dysphoria. This is supported by evidence in the Cass review’s interim report which suggests that around one third of children and young people referred to GIDS have autism or other types of neurodiversity. Given a proportion of these children may also be considered to have the protected characteristic of disability, this evidence corroborates that from the 2017 LGBT survey. This means any negative implications of this measure will likely disproportionally impact those with the protected characteristic of disability as they make up a greater proportion of the pool of affected individuals.

The long-term aim of this order is to improve the data quality of the transgender population as they go through medical pathways. This data will be used to inform the Cass review and their final report which will be used to improve clinical outcomes for transgender people. Given we know that those with disabilities are disproportionally highly represented within those with the protected characteristic of gender reassignment, it is subsequently highly likely that the indirect benefits of this change will also disproportionally benefit those with the protected characteristic of disability.

Sex

Referral data from the Gender Identity Development Service (GIDS) operated by the Tavistock and Portman NHS Foundation Trust shows that in 2018 to 2019 there were higher numbers of females (described as assigned female at birth) being referred to the service than those who were male (described in the table as assigned male at birth).[4] The full breakdown of the number of referrals and their sex can be seen in Table 2 below.

Table 2: Referrals to GIDS by sex assigned at birth

Financial year	2009-10	2010-11	2011-12	2012-13	2013-14	2014-15	2015-16	2016-17	2017-18	2018-19
Referrals assigned female at birth	32	57	106	169	257	399	852	1265	1657	1740
Referrals assigned male at birth	40	75	57	111	180	250	433	542	624	624

Source: https://tavistockandportman.nhs.uk/about-us/news/stories/referrals-gender-identity-development-service-gids-level-2018-19/

Table 2 shows that there were 1740 females referred to GIDS compared to 624 males referred to GIDS in 2018 to 2019. This follows a trend since 2011 to 2012 in which the number of females was higher than the number of males being referred. As such, those who are female are more likely to be disproportionally affected by any negative implications of the change than those who are male, as they make up a greater proportion of the group of affected individuals.

However, the research project will benefit both those born male and those born female in the future as it will lead to improved services and patient outcomes. If this observed trend continues, then these benefits may also disproportionally accrue to females given they may make up a larger proportion of the pool of future users of the service.

Sexual orientation

The 2017 LGBT survey shows that 85.2% of all transgender and non-binary people have a sexual orientation that is not heterosexual (5.4% of respondents chose not to disclose their sexual orientation).[5] The full breakdown of sexual orientation in displayed in Table 3 below.

Table 3: Sexual orientation breakdown of transgender and non-binary people

Responses	Trans women	Trans men	Non-binary	All respondents
Bisexual	35.7%	31.7%	29.5%	31.6%
Gay/lesbian	25.1%	19.8%	22.9%	22.8%
Asexual	2.7%	4.2%	7.3%	5.4%
Pansexual	8.4%	12.8%	17.5%	14.1%
Queer	0.5%	4.7%	6.7%	4.6%
Other	3.2%	4.8%	9.1%	6.6%
Heterosexual	15.8%	16%	3.3%	9.4%
Don’t know/prefer not to say	8.4%	6.1%	3.7%	5.4%
Totals	3740	3170	7410	14320

Source: https://government-equalities-office.shinyapps.io/lgbt-survey-2017/

The above table reports that the number of transgender and non-binary people who identify as LGB+ is much higher than in the general public, with 93.6% of people identifying as heterosexual or straight in 2022 in the annual population survey conducted by the ONS.[6] As such, it is likely that the protected characteristic of sexual orientation will be disproportionally highly represented in the group of people affected by this measure. As such, those with the protected characteristic of sexual orientation are likely to be disproportionally affected by any negative implications of the change as opposed to heterosexuals, as they make up a greater proportion of the group of affected individuals.

The research will be controlled, and data use will be within set conditions as set out above. The aim of this research project is the long-term improvement of gender identity development services of which the LGB+ community makes up a large percentage of service users as shown in Table 3. As such they will be most benefited by the actions of the research project and the Cass review final recommendations.

Regarding the evidence used in this analysis, it is important to note that not all respondents to the 2017 survey who identify as ‘transgender or non-binary’ may qualify within the protected characteristic of gender reassignment. Similarly, not all sexual orientations listed in the survey outcomes may qualify under the sexual orientation protected characteristic. However, this is the most comprehensive data accessible on the issue, so we believe it remains suitable for the purposes of the analysis and conclusions reached above.

Race

We have no data to suggest that either the group of people who will be directly impacted by, or the group that will indirectly benefit from, this change will be disproportionally comprised of those with this protected characteristic versus the public in general.

Age

This order is to facilitate the research commissioned by NHSE and being carried out by the University of York, which is focused on outcomes from the GIDS service. This service is only available to those up to the age of 18, bar some people who are awaiting discharge to adult services and are over the age of 18.

The research which will be studying the health outcomes of those who have been through the GIDS service will only be considering those patients who passed through the service between 2009 and 2020. As such, all those considered in the research will be between the ages of 18 and 30, as these patients are the only group from which relevant data can be collected. They will likely not directly benefit from the service improvements recommended by the Cass review as these improvements will only apply to those under the age of 18 who comprise the future cohort of patients for this service (if any patients whose data is used in the study remain in the service for a longer duration of time then they may see benefits, however we expect this to be a small number of patients, if any).

This means that young adults will make up the totality of the group of people who may be negatively affected by this change. As such, due to them being overly represented in the pool of affected individuals this age group will therefore be disproportionally impacted by any changes. Conversely children will also disproportionally benefit from changes to the service informed by the research.

Gender reassignment

Those with the protected characteristic of gender reassignment (transgender people) make up the totality of the group that is affected by this order as they are the only service users of the GIDS service. As such, this protected characteristic will be disproportionally represented in the group of people who will be directly affected by this change, as their data will be used as part of the research project. This means that any negative impacts associated with the change will disproportionally accrue to those with this protected characteristic.

The population of those with the protected characteristic of gender reassignment is also the group most likely to benefit from the research project, as its findings will inform the Cass review’s final report, which will in turn inform the future shape and structure of service provision. By providing a service rooted in the best available clinical evidence, this will in turn indirectly benefit those with the protected characteristic of gender reassignment through improving the health outcomes from gender identity services for children.

Religion or belief

We have no data to suggest that either the group of people who will be directly impacted by, or the group that will indirectly benefit from, this change will be disproportionally comprised of those with this protected characteristic versus the public in general.

Pregnancy and maternity

We have no data to suggest that either the group of people who will be directly impacted by, or the group that will indirectly benefit from, this change will be disproportionally comprised of those with this protected characteristic versus the public in general.

Marriage and civil partnership

We have no data to suggest that either the group of people who will be directly impacted by, or the group that will indirectly benefit from, this change will be disproportionally comprised of those with this protected characteristic versus the public in general.

Families test

This order is unlikely to have a significant impact on the formation of families.

Engagement and involvement

How have you engaged stakeholders in gathering evidence or testing the evidence available?

Engagement with stakeholders has been led by the Cass review team who have worked with a wide range of stakeholders, including clinical staff, patients and service users, parents, external stakeholder groups and Royal Colleges. The feedback from these groups has been positive and there is an ambition to deliver the Cass review in order to gather evidence for how services for those suffering from gender dysphoria or gender related distress can be better provided to the community who need them.

How have you engaged stakeholders in shaping the policy or programme proposals?

Engagement with stakeholders has been led by the Cass review team who have worked with stakeholder across viewpoints, including clinical staff, patients and service users, parents, external stakeholder groups and Royal Colleges. The feedback from these groups has been positive and there is an ambition to deliver the Cass review in order to gather evidence for gender identity services.

The Department of Health and Social Care (DHSC) has worked with the Government Equalities Office in the creation of the order. The department has also engaged the Information Commissioner’s Office to sight them on our policy proposals.

Summary of analysis

The primary impact of this measure will be a short-term reduction in the protections placed on information considered ‘protected’ under the Gender Recognition Act (GRA) 2004. This reduction will be limited to a small number of people necessary for the collection, linkage and analysis of data on behalf of a commissioned research project. Our analysis suggests that those with the protected characteristics of disability, sexual orientation, gender reassignment, females, and those in the age category of 18 to 30 are likely to be overrepresented in the group of people who will be primarily impacted in this way.

It is important to emphasise that any disclosure of protected information would only take place within the context of research being undertaken on behalf of the Cass review between people authorised to view this data under the order. No identifiable information will be made public at any point.

There is a hypothetical risk that data breaches may mean that personal information is exposed to those outside the research programme through the course of its work. However, this risk is considered small and is limited through the significant safeguards in place – for instance the data will be stored on secure servers, pseudonymised wherever possible, encrypted and accessible only by authorised persons.

In our view, the potential impacts of the reduction in protection, in a controlled and minimal way, are outweighed by the significant benefits that will be provided through the research project. The Cass review’s final report will be informed by the data collected by the research team and will recommend improvements in the approach to NHSE for how children’s gender identity services can be best provided, founded in the most up-to-date clinical evidence. This may result in the significant public and private health benefits of improving the outcomes of patients who are referred for assessment and treatment to the children’s gender identity services, by ensuring that they review the highest standard of safe and effective care that meets their needs. As this equality impact assessment has discussed, these benefits will also accrue disproportionally to the groups with the protected characteristics that are overrepresented in the group of patients who were referred to the service between 2009 and 2020, and who will be the subject of the study.

Any negative impacts will also be limited though the fixed nature of the order, which will expire in 5 years’ time, after the completion of the research project. Furthermore, the number of people with access to this data will be limited to those directed to work on the research project by the University of York research team, and NHS Digital and the relevant NHS Trusts and Foundation Trusts that are needed to collect, disclose and link the relevant data.

In summary, although the order may disproportionally impact people with certain protected characteristics in the short term, we believe it is a proportionate means of achieving the legitimate aim of improving the health outcomes of children suffering from gender dysphoria or gender distress, who are referred to gender identity development services.

Monitoring and evaluation

Monitoring will take place through the research team and the Cass review team; communication between these and DHSC will take place regularly to ensure the security of data accessed as a result of this order. This will allow us to monitor for any unforeseen consequences of this order and scrutinise the justification for disclosing sensitive information about a patient in particular cases. The Order will expire after 5 years, in line with the time limited research project.

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[1] Tribunal Statistics Quarterly: October to December 2021 - GOV.UK (www.gov.uk)

[2] Independent review of gender identity services for children and young people: Interim report, The Cass Review, February 2022

[3] https://government-equalities-office.shinyapps.io/lgbt-survey-2017/

[4] https://tavistockandportman.nhs.uk/about-us/news/stories/referrals-gender-identity-development-service-gids-level-2018-19/

[5] https://government-equalities-office.shinyapps.io/lgbt-survey-2017/

[6] https://www.ons.gov.uk/peoplepopulationandcommunity/culturalidentity/sexuality/datasets/sexualidentityuk