💡Confidentiality

Confidentiality could be defined as treating information, particularly identifiable information by victims or survivors as private unless specific consent is provided for their use. It also includes safeguarding measures in relation to safe recording, storage, and handling of information.

Confidentiality and privacy are particularly important for LGBTQIA+ and gender-diverse people, especially in Malaysia, as breaches could have major consequences due to criminalization and stigmatization. It's important to note that some LGBTQIA+ and gender-diverse people who may not be out to their family members or are only out to certain people in their lives. A breach of confidentiality could result in adverse consequences, such as an increased risk of termination of employment or being disowned by family members.

Examples of sensitive data include a name as per legal documents for trans, intersex and gender-diverse people, sex, gender identity, sexual orientation, HIV and sexual health status, mental health conditions, information about sex life, and substance use.

In the context of Malaysia, it is crucial to assess the necessity of gathering and retaining data concerning an individual's employment and educational background. If deemed necessary, service providers should take diligent measures to safeguard the confidentiality of this information. Providers should exercise careful consideration when deciding whether to collect such data.

👩‍🎨How to integrate the principle of Confidentiality into your practice?

There are two key principles:

• Need-to-know basis: Access to data should be limited only to those who require the information to provide protection and assistance to the person whose data belongs to. Personal data should only be shared with relevant caseworkers, supervisors and referral partners. All parties involved have a responsibility to not accidentally, purposefully or unnecessarily divulge information to other colleagues or parties.

• Informed consent: Informed consent could be defined as any voluntarily given and informed indication of an agreement to process the personal data of the person whose data belongs to. This may be given through written or oral statements or clear affirmation. Consent must be tailored to the characteristics of the person to whom the data belongs, including their age, gender, sex characteristics, language, disability status and other diversity criteria.

🎒Collecting information

When collecting information, it is essential to transparently communicate with survivors about the data required, the purpose of its collection, how it will be utilized, and by whom. Survivors should also always have the option to withhold specific information from particular partners or people, as well as the discretion to decide when and with whom they share their personal information.

🐙Sharing information

• Access to data should be limited only to those who require the information to provide protection and assistance to the person to whom the data belongs. Respect the confidentiality of LGBTQIA+ survivors' personal information, including details about their SOGIESC. Seek their explicit consent before disclosing such information, even if the survivor has already disclosed it to friends and family.

• Where mandatory reporting laws are required, confidentiality may be limited. This may jeopardise the safety of LGBTQIA+ and gender-diverse persons in Malaysia, especially the status of LGBTIQA+ refugees and asylum-seekers. The safety of the survivor must then be considered, along with the potential legal implications of not reporting to determine the appropriate next steps.

Case Study: Data Leakage

Joseph* is a gay man employed as an insurance agent who tested positive for HIV. His employer became aware of his HIV status, leading to his termination due to concerns about potential customer loss resulting from public knowledge of his condition. The source of the HIV status leak remains unclear.

Despite Joseph’s efforts to educate his employer on HIV transmission methods, he was dismissed on the grounds of falsifying information in his health report. Joseph was directed to report the incident to the Malaysian AIDS Council (MAC), but the status of that report's progress remains uncertain.

Key Takeaways

• This is one example of intersectional discrimination, where a person's sexual orientation and HIV status are used to discriminate against them. HIV stigma and its association with LGBTIQ identities have continued to perpetuate and normalise discrimination and violence towards LGBTIQ and gender-diverse people in Malaysia. The violence manifests as individual, interpersonal, and institutional violence.

• It is important to note that HIV status does not affect a person’s ability to work, especially if the person adheres to HIV medication and reaches undetectable status. Furthermore, HIV status is private. It should not and need not be made public in a workplace setting.

• LGBTIQ and gender-diverse people’s right to work and privacy should be protected. Joseph’s loss of livelihood due to the leakage of his personal health status was a clear violation of his rights. There is a potential for his case of unfair dismissal.