Every Australian child is entitled to feel welcome and valued at school, which is why the results of the third national study on the health and wellbeing of LGBTI young people should be cause for alarm. The study found that 61 percent of LGBTI young people who participated in the survey report experiencing verbal homophobic abuse, and 80 percent of the respondents experienced the abuse at school. The detrimental impact of these experiences cannot be underestimated. Discrimination and exclusion reverberates beyond the learning environment to a young person’s social and emotional wellbeing. Schools have a legal obligation to ensure that young people feel safe and supported both in and out of the classroom. This obligation exists irrespective of a school’s religious doctrines, beliefs or principles.

What does the law say?

The Commonwealth Sex Discrimination Act 1984 (SD Act) specifically protects people who experience discrimination because of their sexual orientation, gender identity or intersex status. The Equal Opportunity Act 2010 (Vic) (EO Act) also prohibits discrimination on the basis of sexual orientation and gender identity, however it is a slightly narrower definition of ‘gender identity’ because it does not extend to people who do not identify as either ‘male’ or ‘female’ gender.

Gender identity is protected under Commonwealth law and in Victoria, Queensland, and Tasmania. Very similar protections are afforded in some other states, such as 'chosen gender' in South Australia and the more ambiguous 'gender history' in Western Australia. Under both the SD Act and the EO Act, gender identity is characterised irrespective and without regard as to a person’s designated sex at birth or whether or not medical treatment or intervention has taken place.

What does an inclusive school environment look like?

Having regard to the significant and detrimental impact of discrimination and harassment on young people, schools must create an inclusive and safe environment for their students, including LGBTI young people. Anti-discrimination laws require schools to take reasonable and proportionate measures to eliminate discrimination on the basis of sexual orientation, gender identity or intersex status, including taking positive steps to promote an inclusive school environment; and prohibit direct and indirect discrimination on the basis of sexual orientation, gender identity or intersex status.

Schools are required to support same sex attracted, gender diverse, transgender and intersex students, by:

  • providing a positive, supportive and respectful environment;
  • respecting privacy and confidentiality in relation to all students;
  • supporting students who want to affirm or transition gender identity at school;
  • challenging all forms of homophobia, biphobia, transphobia and intersexism to prevent discrimination and bullying;
  • giving proper consideration to the impact of any requirement to participate in school activities according to gender identity or an assumption of heterosexuality (e.g. school formals, sports activities, camps).

There are some exceptions in anti-discrimination law which permit schools to discriminate if the school or educational program is wholly or mainly for students of a particular sex, race, religious belief, age or age group, or students with a general or particular disability. In Victoria, there are also some exceptions that apply to religious schools in circumstances where it can be established that the discriminatory conduct conforms with the doctrines, beliefs or principles of the religion or is reasonably necessary to avoid injury to the religious sensitivities of the adherents to the religion. Exceptions are interpreted narrowly by courts, and faith based schools with a “broad church” often face significant obstacles in identifying their religious doctrines, beliefs or principles with precision.

Fostering a culture of inclusion, safety and respect means that schools cannot refuse enrolment of a prospective student because the school is concerned about its ability to accommodate the student having regard to toilets or change rooms and gender specific activities. It also means that a school cannot enforce a uniform policy which dictates that students with particular characteristics must wear school shorts and dresses. While schools can set and enforce reasonable standards of dress, appearance and behavior for students after taking into account the views of the school community, the exception is interpreted narrowly.

What can schools do?

In seeking to create a more inclusive environment consistent with a school’s duty of care, we encourage schools to consider the following:

  • Sport can commonly be divided by gender – schools should consider developing a policy which facilitates inclusion for all students in sporting activities. At a minimum, schools should nominate a staff member who students can speak to about joining a sporting team.
  • School camps can also often result in division of students by gender. The current discrimination law landscape has highlighted that the health and safety exception in anti-discrimination law applies only in extreme cases. Schools are unlikely to be able to rely on this exception to restrict students’ participation in camp due to concerns about segregating students based on sex.
  • Schools must take a stand against and challenge all forms of bullying, harassing and discriminatory language or behaviour, including against LGBTI students. Consistently challenging derogatory language such as ‘that’s so gay’ and ‘what a fag/dyke’ can have an immediate impact on a school’s culture. Even questions which are not intended to cause offense, such as ‘are you a boy or girl’ can be confronting and damaging for students who are transitioning or questioning their identity.
  • The focus of the school should be in relation to assessing how it can accommodate gender diversity. This is where the engagement of expert opinions can be helpful.
  • Expert guidance can also be useful for schools to train and up skill current staff including counsellors. This will help with the creation of sensitive strategies and assist in having sensitive conversations.

Moores is here to help.

Moores’ Education and Discrimination teams have considerable expertise in working together with schools to create a more inclusive school environment and a culture which values diversity and promotes equality. We recognise that each school has its own beliefs and identity, and we work closely with schools to build their capabilities to address these issues respectfully and sensitively.