How to support transgender pupils and those experiencing gender dysphoria

September 2020 marked 10 years of the passing into law of the Equality Act 2010. The last 10 years have seen schools, no less than other organisations, getting to grips with how they can better support those pupils with protected characteristics. 

Pupils or indeed staff undergoing ‘gender reassignment’ are protected by s. 7 of the Equality Act.  The section is wide in that a person is protected even if they are “proposing to undergo” “a process (or part of a process) for the purpose of reassigning the[ir …] sex by changing physiological or other attributes of sex”. Given that such a process may take many years, and involve much psychosocial difficulties on the part of the individual undergoing this process, protections are in place right at the very outset of their journey. 

What has been less clear up to now, however, is whether or not individuals who are not ‘reassigning their sex’, but still experience gender dysphoria (defined as “a distressed state arising from conflict between a person’s gender identity and the sex the person has or was identified as having at birth”) are protected by the Equality Act. Such individuals may sometimes wish not to be categorised as boy/girl or man/woman or indeed male/female and otherwise identify themselves as ‘non-binary’ (defined as “relating to or being a person who identifies with or expresses a gender identity that is neither entirely male nor entirely female”). Others’ gender identity may be ‘fluid’. The First Tier Employment Tribunal, however, has recently ruled that “gender is a spectrum” and it is “beyond any doubt” that the protections of the Act apply to people with diverse gender identity or expression.

Aggravated damages were also awarded to the claimant in that case “because of the insensitive stance taken by the respondent in defending … proceedings”: the respondent claimed that the claimant should not be protected by the Act because gender reassignment only applies to people who transition between the binary genders of male and female.

This has far-reaching ramifications for schools whose pupils will be young and who, at times, may be uncertain about the process that they might be embarking upon. It clarifies that the support schools put into place for such pupils should be flexible, and not be based upon assumptions that a pupil will simply transition from male to female, or vice versa. This decision will provide welcome clarity for schools endeavouring to counter the experiences of harassment and bullying of transgender boys and girls, and support their mental health.

Although the extent to which children may be protected by the Equality Act has been clarified with this case, whether or not children can provide informed consent to medical treatment for their gender dysphoria in the form of puberty blockers has now also been ruled upon.

The High Court has ruled that children under 16 are unlikely to understand the ramifications of taking puberty blockers.

The judges said in their ruling:

“A child under 16 may only consent to the use of medication intended to suppress puberty where he or she is competent to understand the nature of the treatment. That includes an understanding of the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences for a child. There will be enormous difficulties in a child under 16 understanding and weighing up this information and deciding whether to consent to the use of puberty blocking medication.”

The legal challenge was brought against an NHS trust providing hormone treatment for young people with gender dysphoria. Ms Bell, who was formerly treated by the Tavistock and Portman NHS Trust, argued that a child going through puberty is not capable of properly understanding the nature and effects of hormone blockers and therefore cannot make an informed choice to go ahead. This case further enhances our understanding of the notion of ‘Gillick competence’ as it applies to teenagers providing informed consent to particularly complex medical treatment with equally complex consequences.