The Gender Identity Research and Education Society estimates that 1% of pupils are ‘gender-variant’ and this figure is on the rise. The integration of transgender pupils is not therefore a new issue and many schools have made welcome strides to ensure compliance with equality legislation.
However, what are schools to make of the recent decision of Nigel and Sally Rowe to remove their son from primary school in a row over another pupil's gender identity? This article seeks to affirm:
- a school's legal obligations
- the steps it should take to ensure its employees are aware of those obligations.
The Equality Act 2010 (the Act)
The Act ensures legal protection against discrimination in relation to nine protected characteristics. As one of these characteristics, a school must not treat pupils less favourably because of their gender reassignment.
Gender reassignment is defined as applying to anyone who is undergoing, has undergone or is proposing to undergo a process of reassigning their sex by changing physiological or other attributes. Accordingly, a pupil is protected even if they have not undertaken a medical procedure but are taking (or proposing to take) steps to live in the opposite gender.
The Act also introduced a Public Sector Equality Duty that applies to public bodies. This requires schools to have due regard to:
- eliminate discrimination and other prohibited conduct
- advance equality of opportunities between people who do and do not share a protected characteristic
- foster good relations across all characteristics.
It is made clear in the Act that schools have a positive duty to “tackle prejudice” and “promote understanding".
Generally, schools are alive to the fact that pupils may identify differently from their gender at birth. This is commonly reflected in anti-bullying and equality policies but the mere existence of such policies is not enough. Schools must demonstrate compliance by ensuring policies are effectively implemented and monitored.
Schools will inevitably rely on their employees to effect policies and evidence how compliance is achieved in practice.
Key employer considerations include:
- Training: teachers and pastoral staff require regular training in gender identity. Topics might include confidentiality, dignity, tackling transphobia and a review of equality legislation.
- Handling specific situations: if possible, teachers should encourage pupils to say how they identify themselves in order to inform the school as to how best to accommodate them. It might be prudent to draft a “memorandum of understanding” for each transsexual pupil to clarify the school’s obligations to the pupil.
- Personal Social Health and Economic Education (PSHE): the National Curriculum requires all schools to make provision for PSHE. Teachers should introduce equality concepts in the classroom and diversity should also be celebrated through events like LGBT History Month.
- Changing names: all staff should be informed of a pupil's change of preferred name and, if a transsexual pupil wishes to have their personal data recognised on school systems, the change should be effected for letters home, reports, bus passes, etc. A strategy for presenting a pupil's name to examination boards should also be agreed between the school’s examination officer, the pupil and their parents/guardians.
- Confidential information: a transgender pupil has the right to keep their status confidential. All staff must understand that information about their status must be kept secure and confidential in accordance with data protection obligations, subject to any prevailing legal obligation to disclose (e.g. where a court order requires it or in order with its safeguarding duties). In particular, office staff who respond to telephone calls should be alerted.