Consultation to remove reference to a registrant's gender on the public register

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Closes 22 Dec 2023

Removing reference to a registrant’s gender on the public register

As part of our statutory duty to maintain and publish a register of all those who are fit to practise, we publish certain information about our registrants, which currently includes their gender. Section 11(2) of the Opticians Act 1989 and rule 21 of the Registration Rules 2005 set out the information that we must publish on our register. These do not include a specific requirement to publish a registrant's sex or gender.

Between December 2022 and March 2023, we ran a public consultation on a draft policy to support registrants who wish to update information about their gender on our register and ensure compliance with the Gender Recognition Act 2004 (GRA) and the Equality Act 2010. Our response to that consultation is being published alongside the issue of this consultation and the new policy is being put into operation.

Some stakeholders responding to this consultation questioned why we provide information on gender on the register at all. In its response, the PSA reiterated its policy that regulators should continue in the trajectory of keeping a pared down approach to registers and that only details necessary for the purposes of public protection should be on the register. The PSA continued that if a register user wishes to find information which is unrelated to public protection, they should use other resources (such as a professional’s practice website or a directory). The PSA said its position is informed by previous policy work and consumer research. In addition, one of the pieces of evidence the PSA might look for under standard 10 of the Standards of Good Regulation is: 'Information on the rationale for including the information displayed on the register, including legal requirements where applicable.'

Among the healthcare regulators, the GOC is in the minority with only the General Osteopathic Council (GOsC), General Chiropractic Council (GCC) and General Medical Council (GMC) also providing information on gender on the public register. The GOsC and GCC are required to provide this information by statute and the GMC is planning to consult on removing this information from the register.

One argument for retaining information about gender on the register is that members of the public may use gender as a proxy for a registrant’s sex as part of seeking same-sex care, so may use this information to decide which optical professional they want to see. Balanced against this, members of the public may use other means to secure same-sex care, such as asking for this when making an appointment.

As part of this consultation, we are running a short survey on our website to ascertain who uses the register and for what purposes. It is possible to search the register by gender using the advanced search facility, but our expectation is that this is little used by the public. The results of the survey will feed into our analysis.

The GMC has reflected on whether it is a legitimate expectation for patients to be able to choose to be treated by a doctor of a particular sex and, if so, whether the GMC has a role in enabling this. Its ethical analysis concluded that, "whilst the human right to healthcare is clear, there does not appear to be a fundamental right for patients to be treated by a doctor of a certain birth sex. However, in reality, patients are entitled to request to be treated by someone of a particular birth sex (and commonly do this at local healthcare provider level)”. The GMC’s view is that there can be good reasons for such requests to be accommodated locally where possible, such as in the case of those who have experienced sexual and/or physical abuse, or where they arise because of specific religious beliefs. However, the public register is not the best place for patients to locate this information.

Under the Data Protection Act and the Gender Recognition Act, there are legal implications for revealing someone's trans status without their permission or unless it is with the intention of preventing or investigating a crime. The GMC also identified risks relating to the public misunderstanding information, which in turn could undermine trust in the register. It highlighted that some members of the public use gender as a proxy for birth sex and therefore the GMC may need to add caveats to this information if they continue to display it to address these risks.

While the GOC must resolve this policy issue by reference to the current Opticians Act and Registration Rules, we are mindful of implications of planned legislative reform. The planned Order for the regulation of Physician Associates and Anaesthesia Associates is intended to provide a template for changes to other healthcare regulators’ legislative frameworks. Our interpretation of the most recent draft Order is that we could record gender data if we wanted to, but we would not be able to publish it unless we decided that doing so would be in the interest of public protection.

If we decide to retain publishing information about a registrant’s gender on the public register, the binary gender options we currently record are not in keeping with current social expectations. Including information about gender rather than sex would be the more inclusive approach since not everyone identifies with their sex registered at birth. However, since providing information on gender is currently mandatory, including other options, such as non-binary, would risk outing registrants. If information about gender is deemed necessary to protect the public, it follows that this information should remain on the public register. While we could consider making recording gender on the public register a voluntary option, the risk of inadvertently outing people remains, it would create gaps on the register and there would be increased administrative costs to consider.

If we decide to remove reference to gender from the public register, we will continue to operate our policy for managing requests from registrants to change their gender recorded within our internal CRM system. It is necessary to do this to ensure our records are accurate while also respecting the rights of individual registrants. We need to hold information internally on our CRM system about the gender of our registrants (and other protected characteristics) so that we can carry out equality and diversity data analysis and so that we can share appropriately anonymised information about the gender of our registrants with commissioners and other stakeholders.

Our proposal is that we should no longer include information about a registrant’s gender on the public register. This is because it is not necessary for public protection purposes, we believe there is little use of this information by the public and members of the public have alternative means to obtain this information.

Proposed implementation and transitional arrangements

Should we decide to remove gender from the website this will involve some website development work, which we would progress as soon as possible.