Gender identity is becoming an ever more prevalent topic in society and particularly in the education sector, where children and staff alike are typically referred to by their gender, or in a way that denotes their gender.

Our October 2017 newsletter considered gender reassignment, where an individual feels that their birth gender does not match their gender identity and transitions to that gender. This article explores genderfluid, genderqueer and non-binary gender identities.

Key terms

  • Genderfluid individuals move between genders or have a fluctuating gender identity and may identity as male, female, non-binary or a combination of gender identities. Their gender can vary at random or in response to different circumstances.
  • Genderqueer and non-binary individuals may not identify as only male or female, or may identify as both or with a gender identity other than male or female and often prefer neutral pronouns such as they/them and neutral titles such as Mx.
  • Trans is the ‘T’ in LGBT, and an umbrella term used to describe individuals whose gender identity is not the same as or does not sit comfortably with the sex they were assigned at birth.

It is clear from the increase in referrals made to the Gender Identity Development Service based at the Tavistock and Portman NHS Foundation Trust in London - the only NHS Gender Identity Clinic available for young people (under the age of 17) in England, that young people and their families are growing in confidence in seeking support in relation to their gender identity. 2,016 referrals were received in 2016/17 compared to 97 referrals in 2009. These referral figures are unlikely to be representative of the number of young people facing gender issues given the various factors that may prevent many from seeking such help, including the continued stigma surrounding gender identity and the fact that there is just one NHS clinic specialising in referrals from young people. Notably, the adult position is not much better, with only seven NHS Gender Identity Clinics available for those aged 17 or over in England.

Genderfluid, genderqueer and non-binary individuals are not specifically protected from discrimination under the Equality Act 2010; the protected characteristic of gender reassignment (which is considered in more detail in our October 2017 newsletter) applies to those who have undergone, are undergoing or proposing to undergo a process of reassigning their sex by physiological or other attributes, and the protected characteristic of sex means being “a man” or “a woman”.

This position has been subject to criticism and invitations for reform, including from the Women and Equalities Committee in its first report on transgender equality (published in January 2016), which made a variety of recommendations, including that:

  • more needs to be done to ensure that gender-variant young people and their families get sufficient support at school and that LGBT issues are taught at school
  • higher education institutions should take proactive steps to promote trans equality, including having a Transgender Champions scheme for staff
  • the government create a legal category for those with a gender identity outside of that which is binary
  • gender should be based on “self-declaration" rather than a "medicalised" assessment
  • the protected characteristic of gender reassignment (considered to be outdated and misleading) should be renamed to "gender identity" in order to protect wider categories of trans individuals, including cross-dressers and those who are non-binary or genderfluid
  • the gender “X” should be introduced as an option on a UK passport (as it has been in Australia)
  • official records should be ‘non-gendered’ as a general principle.

The Government, in its response, committed to consider whether improvements could be made to de-medicalise the gender recognition process and to move towards “non-gendering" official records where possible. It decided not to rename the protected characteristic of gender reassignment, and did not commit to making any legislative changes, although it agreed to keep matters under review, an approach which has been criticised for not going far enough to address the concerns raised by the Women and Equalities Committee.

We therefore expect there to be changes to the law in the future or, at the very least, further reviews and recommendations for reform given that the legal position has not developed at the same speed as societal changes.

Gender identity will continue to be an important topic in the education sector, in respect of both staff and pupils. Whilst genderfluid, genderqueer and non-binary individuals may not be specifically protected by the Equality Act at present, schools have a duty to prevent prejudice-based bullying, and, according to the Stonewall School Report 2017 (a survey of over 3,700 LGBT pupils in Britain's secondary schools):

  • 45% of LGBT pupils (including 57% of non-binary pupils) are bullied for being LGBT at school, almost half of whom never tell anyone about the bullying
  • 60% of non-binary pupils have failed to attend school as a result of LGBT bullying
  • three in four LGBT pupils have never been taught about or discussed gender identity and what trans means, which can result in pupils repressing their gender identity on the assumption that it is unnatural or unacceptable.

What should education institutions do now?

Our previous article sets out some useful practical steps in implementing, monitoring and maintaining effective anti-bullying and equality policies in schools. In addition to these recommendations, schools can consciously consider reducing the traditional gender divide by encouraging staff to avoid referring to students by gender ("could the girls at the back stop talking") or dividing pupils by traditional gender groups for sports teams or seating plans, as this suggests that only two genders exist. Another way of increasing inclusion and teaching LGBT issues is to incorporate LGBT identities in lesson plans where appropriate, for example by studying works by LGBT authors or discussing LGBT themes in literature.

The education sector needs to be alive to gender identity and should ensure staff are appropriately trained on how to help and support LGBT students. The Kite Trust has established a project called the Rainbow Flag Award under which schools can receive LGBT inclusion training and other resources to assist in tackling bullying and promoting inclusion. Further information can be found here: http://thekitetrust.org.uk/schools-services/rainbow-flag-award/.