Following our previous article on the complexities covered by the term ‘transgender’ we look at the practical issues for schools encountering transgender pupils for the first time. The Equality Act 2010 provides legal protection from discrimination of pupils proposing, undergoing or who have completed a process of gender reassignment (section 7(1)). It is a protected characteristic. But there is a lack of case law and guidance; and strong opinions from pupils, parents and various pressure groups. Numbers of cases are on the rise. Forward thinking is crucial.
The Tavistock and Portman NHS Trust, the UK’s only centre specialising in gender issues in under 18s, reported that the number of under 11s referred to it rose from 19 in 2009-10 to 77 in 2014-15. This included 47 children aged five or under, and two children just three years old.
New national guidance is expected from the Equality and Human Rights Commission (EHRC) in March 2018. In the meantime, the joint guidance issued in 2015 by the Cornwall Council, Devon & Cornwall Police and The Intercom Trust remains useful. It covers current issues: such as admissions; discrimination; bullying; sports and P.E; transitioning between schools; use of toilets and changing rooms; school uniform and changing names.
In admitting pupils undergoing gender reassignment to single sex schools a conflict arises: on the one hand pupils cannot be discriminated against because of their protected characteristic (gender reassignment); but on the other, there are specific exceptions to the discrimination provisions in the Equality Act in respect of single sex schools. Schools should be prepared for challenges; and may need to be flexible.
Requests for change of name are increasingly commonplace in schools of all types. The new guidance will most likely advise acceptance. (The Cornwall Guidance has a useful section regarding names on exam certificates). If there are conflicts with one or more parents surrounding the child’s preferred gender, schools will need to consider whether a pupil is Gillick competent (i.e whether a child has sufficient understanding to manage their own affairs and treatment, without the need for parental permission or knowledge).
Toilet facilities and changing rooms give rise to mixed and strongly held opinions. Some schools have adapted disabled toilets as a gender-neutral facility. Others argue that this can isolate and single-out transgender pupils. Single, separate, gender-neutral cubicles with a common area for washbasins could be a solution. What is crucial is that schools review, amend and make exceptions to policies as and when required, giving careful consideration to requests.
Sports and PE can also be a challenge because of inherent physical differences between genders and possible advantage or disadvantage, particularly during contact sports. Schools should consult with pupils and parents before lessons start, in particular in relation to sports at a competitive level.
Schools are advised to be flexible over uniform and provide options that include gender-neutral ones. For example, schools are advised to allow girls to wear trousers.
Transphobic bullying is sadly commonplace and it goes without saying that schools should be working hard to prevent it. Educating staff and pupils, and a flexible and understanding approach to the difficulties and complexities facing transgender pupils, will minimise conflicts. Schools should work with pupils and parents to ensure that schools are safe and accommodating environments for all. We will be writing further about the issues raised by this article when national guidance is published.