The Gender Recognition (Disclosure of Information) (Scotland) Order 2005

Scottish Statutory Instruments

2005 No. 125

GENDER RECOGNITION

The Gender Recognition (Disclosure of Information) (Scotland) Order 2005

Made

3rd March 2005

Laid before the Scottish Parliament

3rd March 2005

Coming into force

4th April 2005

The Scottish Ministers, in exercise of the powers conferred by section 22(5), (6) and (7) of the Gender Recognition Act 2004(1), hereby make the following Order:

Modifications etc. (not altering text)

C1 Order applied (with modifications) (21.2.2009) by The Banking Act 2009 (Parts 2 and 3 Consequential Amendments) Order 2009 (S.I. 2009/317), arts. 1, 3, Sch.

C2 Order applied (with modifications) (8.2.2011) by The Investment Bank Special Administration Regulations 2011 (S.I. 2011/245), reg. 1, Sch. 6 Pt. 1 (with reg. 27(a))

C3 Order applied (with modifications) (8.7.2021) by The Payment and Electronic Money Institution Insolvency Regulations 2021 (S.I. 2021/716), reg. 2, Sch. 3 paras. 2, 3 (with reg. 5)

Citation, commencement and extent S

1.—(1) This Order may be cited as the Gender Recognition (Disclosure of Information) (Scotland) Order 2005 and shall come into force on 4th April 2005.

(2) This Order extends to Scotland only.

Commencement Information

I1 Art. 1 in force at 4.4.2005, see art. 1(1)

Interpretation S

2.  In this Order–

“the Act” means the Gender Recognition Act 2004;

“the 1986 Act” means the Insolvency Act 1986(2);

“the 1989 Order” means the Insolvency (Northern Ireland) Order 1989(3); and

“the subject”, in relation to any protected information, means a person to whom any protected information relates.

Commencement Information

I2 Art. 2 in force at 4.4.2005, see art. 1(1)

Disclosure for purpose of obtaining legal advice S

3.  It is not an offence under section 22 of the Act to disclose protected information for the purpose of obtaining legal advice.

Commencement Information

I3 Art. 3 in force at 4.4.2005, see art. 1(1)

Disclosure for religious purposes S

4.—(1) It is not an offence under section 22 of the Act for a person who acquired protected information in an official capacity in relation to an organised religion to disclose that information to any other person acting in such a capacity if the conditions set out in paragraphs (2) and (3) are met.

(2) The disclosure is made for the purpose of enabling any person to make a decision in relation to–

(a) whether to solemnise or permit the marriage of the subject;

(b) the validity or dissolution of a marriage of the subject;

(c) the admission or appointment of the subject–

(i) as a minister of religion;

(ii) to any employment, office or post for the purposes of an organised religion;

(iii) to any religious order or community associated with an organised religion; or

(iv) to membership, or any category of membership, of an organised religion;

(d) the validity, suspension, termination or revocation of any admission or appointment mentioned in sub-paragraph (c); or

(e) the eligibility of the subject to receive or take part in any religious sacrament, ordinance or rite, or take part in any act of worship or prayer, according to the practices of an organised religion.

(3) The disclosure is made for the purpose of enabling any person to make a decision in relation to the matters specified in paragraph (2)(c), (d) or (e) and the person who makes the disclosure reasonably believes that the person to whom the disclosure is made may require the information in order to make a decision in a way which complies with the doctrines of the religion or avoids conflicting with the strongly held convictions of a significant number of the followers of the religion.

(4) It is not an offence under section 22 of the Act for a person who acquired protected information in an official capacity in relation to an organised religion, and who requires to make a decision in relation to the any of the matters specified in paragraph (2), to disclose that information to any person responsible for the supervision of the person making the disclosure.

Commencement Information

I4 Art. 4 in force at 4.4.2005, see art. 1(1)

Disclosure for medical purposes S

5.—(1) It is not an offence under section 22 of the Act to disclose protected information if–

(a) the disclosure is made to a health professional;

(b) the disclosure is made for medical purposes; and

(c) the person making the disclosure reasonably believes that the subject has given consent to the disclosure or cannot give such consent.

(2) For the purposes of this article–

(a) “medical purposes” includes the purposes of preventative medicine, medical diagnosis and the provision of care and treatment; and

(b) “health professional” means–

(i) a registered medical practitioner;

(ii) a registered dentist within the meaning of section 53(1) of the Dentists Act 1984(4);

(iii) [F1 a pharmacist or pharmacy technician registered in Part 1 or 3 of one of the registers maintained under articles 10(1) and 21(1) of] the Pharmacists and Pharmacy Technicians Order 2007 or a registered person within the meaning of article 2(2) of the Pharmacy (Northern Ireland) Order 1976(5);

(iv) a registered nurse;

(v) any person who is registered under the [F2 Health Professions Order 2001] as a paramedic or operating department practitioner; and

(vi) a person employed in a trainee capacity in any of the professions specified in this sub-paragraph.

Textual Amendments

F1 Words in art. 5(2)(b)(iii) substituted (1.7.2009 as notified in the London Gazette dated 19.6.2009 (Issue 59104)) by The Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009 (S.I. 2009/1182), art. 1(5), Sch. 4 para. 29

F2 Words in art. 5(2)(b)(v) substituted (2.12.2019) by The Children and Social Work Act 2017 (Consequential Amendments) (Social Workers) Regulations 2019 (S.I. 2019/1094), reg. 1, Sch. 2 para. 20; S.I. 2019/1436, reg. 2(b)

Commencement Information

I5 Art. 5 in force at 4.4.2005, see art. 1(1)

Credit reference agencies S

6.—(1) It is not an offence under sections 22 of the Act to disclose protected information if–

(a) the disclosure is made by or on behalf of a credit reference agency;

(b) the information consists of information contained in an order of a court or tribunal; and

(c) if the credit reference agency has been informed that a full gender recognition certificate has been issued to the subject, the disclosure also contains that information.

(2) It is not an offence under section 22 of the Act for a person, when making a disclosure under paragraph (1), also to disclose information taken from an electoral register.

(3) For the purposes of this article “credit reference agency” [F3 is to be read in accordance with] section 145(8) of the Consumer Credit Act 1974(6).

Textual Amendments

F3 Words in art. 6(3) substituted (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2013 (S.I. 2013/1881), art. 1(2)(6), Sch. para. 28

Commencement Information

I6 Art. 6 in force at 4.4.2005, see art. 1(1)

Insolvency and Bankruptcy S

7.—(1) It is not an offence under section 22 of the Act to disclose protected information if–

(a) the disclosure is made by or to a relevant officeholder;

(b) the disclosure is necessary for the relevant officeholder to perform functions under the Bankruptcy (Scotland) Act 1985(7), the 1986 Act, the Company Directors Disqualification Act 1986(8), the 1989 Order, and the Company Directors Disqualification (Northern Ireland) Order 2002(9); and

(c) if the person making the disclosure knows or believes that a full gender recognition certificate has been issued to the subject, that information.

(2) For the purposes of this article “relevant officeholder” means–

(a) The Accountant in Bankruptcy, or any interim or permanent trustee or trustee acting under a trust deed for creditors within the meaning given by the Bankruptcy (Scotland) Act 1985;

(b) the official receiver within the meaning given by section 399(1) of the 1986 Act or article 2 of the 1989 Order, in whatever capacity the official receiver is acting; or

(c) a person acting as an insolvency practitioner within the meaning given by section 388 of the 1986 Act or article 3 of the 1989 Order.

Commencement Information

I7 Art. 7 in force at 4.4.2005, see art. 1(1)

CATHY JAMIESON

A member of the Scottish Executive

St Andrew’s House, Edinburgh

3rd March 2005

Explanatory Note

(This note is not part of the Order)

Section 22 of the Gender Recognition Act 2004 (“the Act”) provides that it is an offence for a person who has acquired protected information in an official capacity to disclose the information to any other person. “Protected information” is defined in section 22(2) as information relating to a person who has applied for a gender recognition certificate under the Act, and which concerns that application (or a subsequent application by them), or their gender prior to being granted a full gender recognition certificate.

Section 22(4) sets out certain circumstances where disclosure of protected information does not constitute an offence (for example, where person to whom the information relates is not identifiable, or has agreed to the disclosure). This Order prescribes additional circumstances where the disclosure of protected information does not constitute an offence. These concern disclosure for the purpose of obtaining legal advice (article 3), religious purposes (article 4), disclosure for medical purposes (article 5), disclosure by or on behalf of a credit reference agency (article 6), and disclosure for purposes in relation to insolvency or bankruptcy (article 7).

In some cases, the Order requires the disclosure to include the information that a full gender recognition certificate has been issued to the person to whom the information relates (“the subject” as defined in article 2). The effect of including this information is that the person to whom the disclosure is made will not be able to disclose the information to a third person in reliance on section 22(4)(c) of the Act (which permits disclosure where the person making it does not know or believe that a full gender recognition certificate has been issued).

(1)

2004 c. 7.

(2)

1986 c. 45.

(3)

S.I. 1989/2405 (N.I. 19).

(4)

1984 c. 24.

(5)

S.I. 1976/1213 (N.I. 22).

(6)

1974 c. 39.

(7)

1985 c. 66 as amended by the Bankruptcy (Scotland) Act 1993 (c. 6).

(8)

1986 c. 46.

(9)

S.I. 2002/3150 (N.I. 14).