Schools are to be issued with the first national guidelines on transgender children. The new guidelines, to be published in March, will set out how to address transgender pupils – what pronouns to use – as well as how to accommodate pupils in terms of toilets, changing rooms and uniforms. The guidelines will also deal with bullying, single-sex admissions and parental concerns.
Caroline Prosser, legal director at Hill Dickinson LLP, discusses the upcoming guidelines and considers what training schools should have in place for their staff in order to understand transgender issues
According to Britain’s equality chief, David Isaac, transgender children are being ‘failed by the system’ and this is leading to an ‘unprecedented number of self-harm and suicide attempts’.
As a result, the Equality and Human Rights Commission (EHRC) is drafting some guidelines for schools dealing with transgender pupils. Meanwhile, the Church of England has also updated its 2014 document Valuing All God’s Children to include transphobic and biphobic bullying. What can schools expect from the EHRC guidelines and are there any steps schools can take now to prepare?
Gender Recognition
Transgender adults can apply for a Gender Recognition Certificate, which entitles them to a new birth certificate in their acquired gender, and to be legally treated, for almost all purposes, as if they had been born that gender. However, this process is restricted to adults and does not address the growing number of young people who do not identify with their assigned birth gender.
Transgender equality in schools
The Equality Act 2010 prohibits schools from discriminating against a pupil because of their transgender status. Schools should take special steps to meet the needs of transgender pupils, using a similar approach to the ‘reasonable adjustments’ of disability cases.
Current medical advice and research shows that supporting these children and adolescents leads to the best outcomes in terms of their education, mental health and future happiness and minimises the increased risks of homelessness, self-harm and suicide.
On request from a pupil, with the support of their parents, the school is able to change the name and gender of a pupil on their systems at any time, including sending these details to exam boards and requesting that staff and pupils use their new name and preferred pronoun. Whilst the very recent case of a teacher being summoned to a disciplinary for ‘misgendering’ seems frightening, this was seemingly because of his Christian belief that, “…it is not unreasonable to call someone a girl if they were born a girl”, rather than an accidental slip of the tongue. This case certainly demonstrates the importance of training staff and governors in transgender issues as part of equality training.
Pupils should be allowed to wear the uniform of the gender that they identify with and schools should also offer a ‘gender neutral’ option, such as allowing all pupils to wear trousers. There are no issues under child protection or safeguarding that prohibit transgender pupils from using the changing room or toilet which reflects their gender identity – the child should be consulted as to their preference. It would be good practice now to assign some changing areas or toilets as unisex in case this is a pupil’s preferred choice.
In PE lessons teachers should take account of size, physical strength and ability in any event; therefore a common-sense approach should be taken as to whether a pupil should have the option of which gender they participate with. Representing the school in the gender they identify in should not be an issue if there is not a physical advantage; however this would need to be considered on a case-by-case basis with the relevant sporting body.
Privacy
As with all pupils, transgender pupils have a right to privacy and schools must only disclose the pupil’s transgender status to parents, carers and other members of the school community where there is a legal obligation to do so, or where the pupil has given permission. It is, therefore, vital that the school discusses the issue of confidentiality with the pupil and asks who they wish the information to be disclosed to. A new pupil who has already transitioned need not disclose their status.
Gillick Competency
If a transgender student is capable of making decisions in respect of the matters discussed in this article, then this should be respected and accommodated by the school regardless of the parent’s views. The right to a private life and not to be discriminated against do not begin when a person reaches adulthood. To decide if a child is capable of making this decision, the legal test is whether they are ‘Gillick competent’ – a term used in medical law to decide whether a child under 16 years of age is able to consent to their own medical treatment, without the need for parental permission or knowledge. Children aged 16 and over are generally regarded as Gillick competent.
A person under 16 may well be Gillick competent in respect of a change of name, for example, and the closer the child is to 16, the more they would be regarded as Gillick competent. There are many ways of testing for Gillick competency, and legal advice should be sought.
How can schools prepare?
- Train staff on transgender issues and the school’s equality duty.
- Reduce the risk of bullying by challenging traditional notions of gender throughout the curriculum, celebrating all forms of diversity and creating an environment where transgender children feel safe and supported.
- Review policies and practices – for example, dress codes.
- Correctly record any incidents of transphobic bullying and make it clear that it will not be tolerated.
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