Concerns Regarding Disclosure Scotland's Policy on Transgender Disclosure

Understanding Disclosure Scotland's Role

Disclosure Scotland is a Scottish Government agency. It provides criminal record checks to help employers make safe recruitment decisions. The agency also aims to protect vulnerable groups, including children and adults, through criminal checks. Its core functions include processing disclosure applications, managing the Protecting Vulnerable Groups (PVG) scheme for regulated roles, and maintaining lists of individuals barred from working with vulnerable people.

According to Disclosure Scotland’s website:

“If you're transgender, you can apply for a disclosure using your present gender and without telling your employer what your previous name was. You only have to tell Disclosure Scotland.”

Safeguarding Concerns

ScotPAG regards this policy as a significant safeguarding risk. Services for vulnerable individuals—such as care, health services, schools, police, prisons, and personal services—could be accessed by individuals with criminal intent. These individuals could change their names without consequence and keep their criminal history entirely private.

Disclosure Scotland’s website does not mention the duty to undertake a risk assessment. This omission exacerbates the safeguarding issue. The Supreme Court ruled in April that the meaning of sex in the Equality Act (2010) is biological sex. It clarified that “gender,” “non-binary,” and “transgender” are not protected characteristics under the Act.

Legal Implications of Gender Reassignment

While gender reassignment is a protected characteristic in the Act, the Supreme Court made it clear that possession of a Gender Recognition Certificate (GRC) does not allow anyone to claim to be the opposite sex for the purposes of using or providing a single-sex service. This ruling is highly relevant to the public services mentioned earlier.

We have formally written to Disclosure Scotland outlining our concerns. Once again, our public services appear to be avoiding compliance with the law. Read our letter here:

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Letter to Gerard Hart

Gerard Hart

CEO and Chair

Disclosure Scotland

Dear Gerard Hart,

We are writing to express our concerns regarding your policy of guaranteeing confidentiality about sex and previous names for anyone claiming to be transgender. You also assure that anyone claiming to be non-binary can declare any name or sex they choose.

Given the role of Disclosure Scotland, we see this as a safeguarding risk. The Supreme Court ruled that the meaning of sex in the Equality Act (2010) is biological sex. You are aware that “gender,” “non-binary,” and “transgender” are not protected characteristics in the Act. While gender reassignment is a protected characteristic, the Supreme Court clarified that possession of a GRC does not permit anyone to claim to be the opposite sex for the purposes of using or providing a single-sex service.

Such services include care and health services, schools, police, prisons, public toilets, and personal services. You are aware of the duty to undertake a risk assessment of your declared policy.

The Need for Risk Assessments

As we have indicated, the terms ‘transgender’ and ‘non-binary’ are not protected characteristics in terms of law. They should not be confused with the needs of individuals with protected characteristics who require specific safeguarding arrangements, such as single-sex spaces and services.

Currently, your website states (updated 1 Apr 2025):

“If you're transgender, you can apply for a disclosure using your present gender and without telling your employer what your previous name was. You only have to tell Disclosure Scotland.”

“You only need to use this process if your employer is countersigning your application. If you’re applying for a Level 1 disclosure without a countersignatory, you can include your previous names when asked because these are not included on your Level 1 disclosure.”

“You can use this process if you’re non-binary, but you’ll need to enter male or female when asked for gender. This does not need to be your legal sex. This information is not used for matching people to criminal records.”

“Warning: Disclosure Scotland will not share any information about your gender history with your employer or regulatory body. The information is not used for equalities monitoring or other purposes.”

This statement implies that Disclosure Scotland guarantees confidentiality about a man's former name and actual sex for disclosure, including to the Scottish Social Services Council (SSSC). We understand that you have not informed the SSSC regarding this arrangement. This presents a major safeguarding concern, particularly for women and children, and contravenes the Supreme Court ruling.

Request for Compliance

Next steps: We request that you provide us with any risk assessments carried out both before and after the Supreme Court ruling. We also ask that you amend your statement to comply with the law and the Supreme Court ruling.

I look forward to your response.

Best wishes,

Carolyn Brown (Retired Dep. Principal Psychologist)

ScotPAG Convenor @scotpag scotpag.com

Additional Signatories

June Campbell, ScotPAG Administrator, Retired Psychoanalytic Psychotherapist

Prof Brigid Daniel, Retired Professor of Social Work

Pauline Fox, Retired Clinical Nurse Specialist/Team Lead

Victoria Hart, Midwife

Maggie Mellon, Social Worker, MSc, CQSW, Dip Child Protection

Elaine Miller, Fellow of Chartered Society of Physiotherapy

Carole McKenzie, Former HMI & Director of Education, B.Ed. Hons

Dr Anne Woodhouse, Clinical Psychologist

Plus anonymous signatories:

Headteacher, B.Ed. Hons, and General Practitioner, MBChB, RCGP