We last wrote on this topic almost a year ago when national guidance was expected, but had not yet been published. We are still waiting for this guidance. Meanwhile, schools are grappling with these issues on an increasingly regular basis. Here we give some tips on how to handle common queries.
Section 85 of the Equality Act makes it unlawful to discriminate on the basis of gender reassignment, a protected characteristic. Whilst, there is an exception to the Equality Act in relation to admissions to single sex schools (schedule 11), schools must still not discriminate in the arrangements it makes for deciding who is offered admission or the terms on which admission is offered.
A single sex school that admits a pupil who is undergoing gender reassignment to the opposite sex (or permits that pupil to remain) will not lose its single-sex status.
Transgender pupils should be able to use the facilities of the gender with which they identify. If changing is problematic they should be given the option to use a fully enclosed alternative facility. This will help ensure that schools respect the dignity and privacy of their pupils. Alternatively, schools can consider allowing anyone who feels uncomfortable changing with a trans child to use a separate facility. Co-educational schools are being encouraged to provide gender-neutral single cubicle toilets. Schools could use terms such as ‘unisex accessible toilets’, ‘larger toilet’ or ‘toilet and changing facilities’ to describe separate facilities.
Transgender/gender questioning children have a right to dress in a manner consistent with their gender identity. Many schools have already introduced gender-neutral uniform policies, or policies which allow pupils to choose between a skirt and trousers. Schools will also need to consider what pupils are expected to wear for PE and swimming.
- Participation in Sports
Schools must take care not to prevent any transgender child from taking part in a PE activity in accordance with their gender identity unless there is sufficient justification for this. Possible justifications may be whether a transgender pupil may have a physical advantage (a problem that is vexing international athletics at present) or whether there may be safeguarding or safety concerns particularly with contact sports such as rugby.
- Names and forms of address
Changing their name and gender identity is a pivotal point for many transgender pupils. There is nothing to prevent schools making changes on their internal information management systems to pupils’ ‘preferred names’ and use pronouns in accordance with their wishes. All staff should be made aware of changes and receive appropriate training. Schools should ensure that any changes of name feed into letters home, school reports etc.
It is always worth checking whether those with Parental Responsibility have consented. In any event, schools should check whether the child is Gillick competent, a term used in law to decide whether a child (under 16 years of age) is able to give consent without the need for parental permission. A child is usually assumed to be Gillick competent around the age of 12 but an individual assessment should be made.