Could your school be contravening the Equality Act 2010 by not admitting a transgender pupil?
There have been a number of stories in the press recently concerning moves towards gender neutrality in the education field. These have included gender neutral uniform policies and terms of address. In August, it was reported that exam boards are considering creating a transgender category for students who do not identify as either male or female.
It is perhaps inevitable that gender-related issues will come to the fore in schools given that school-age children are beginning to work out their social identity. Issues are often highlighted in the school context because of the traditional separation and management of pupils along gender lines.
In the context of single-sex and boarding schools, such issues can be intensified, particularly when a pupil's very place in the school might be called into question because of gender identity or reassignment.
Gender reassignment protection
Under the Equality Act, schools must not discriminate against or victimise pupils in terms of admission to the school or in the provision of education, benefits, facilities and services on the ground of any protected characteristic. The protected characteristics include sex and gender reassignment.
A person has the protected characteristic of gender reassignment if that person is "proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex" (Equality Act 2010).
The Equality and Human Rights Commission describes gender reassignment as a "personal process, that is, moving away from one’s birth sex to the preferred gender, rather than a medical process". There is no need for the person to be under medical supervision or undergoing any particular medical or other treatment before they are protected. The decision to reassign gender need not be irrevocable and protection will continue even if the person stops or reverses the transitioning process.
On this basis, a person who is legally one sex and seeks to identify with the other sex, will fall under the protection of gender re-assignment, provided there is a declared intent to be so identified. Interestingly, the Equality Act does not include protection for those seeking to identify as gender neutral.
Children who make a decision to transition from one gender to another or to live as a different gender to their birth sex are protected by the legislation. This is the case even if the child later decides not to transition.
Chris Billington, who leads Wrigleys' Education Team, comments: "Although the Equality Act is a fairly recent piece of legislation, it does not truly reflect the current complexities of thinking on gender identity and gender fluidity. The protected characteristic of "sex" relates simply to whether someone is "a man or a woman" (and this includes boys and girls). At present the law does not recognise a 'neutral' sex or gender. It is possible that the legal definitions of sex (male or female) and gender reassignment will be challenged in the future on the basis that they represent only a limited binary choice and do not provide a "neither" option, for example, for intersex people (who have male and female biological traits) or those who identify as gender neutral."
There is some uncertainty about how the protected characteristics of "sex" and "gender reassignment" interact and whether a single sex / boarding school can lawfully make decisions about admitting a transgender pupil on the basis of their legal sex. It is still the case that people in the UK cannot be legally recognised as a different sex to that assigned at birth unless they have a Gender Recognition Certificate (GRC). Those under 18 cannot apply for a GRC.
Exceptions under the Equality Act
As case law suggests (see our report on a recent mixed-sex school segregation case here), it can be discriminatory to segregate girls and boys for educational provision in school under the Equality Act.
There are exceptions under the Equality Act which allow single-sex schools to operate. Single-sex schools can discriminate on the ground of sex by admitting one sex only. The term "single-sex" includes schools which exceptionally admit pupils of the other sex or which admit a comparatively small number of pupils of the other sex and confine those pupils to particular classes or courses.
In practical terms, then, a girls' school will not lose its single-sex status by admitting a pupil who was born male but identifies as a girl. The question of whether such a pupil would be discriminated against if she was refused admission is not a simple one. (I use the term 'she' here as properly denoting the gender with which this individual pupil identifies.)
A school might argue that she is not being refused admission on the ground of gender reassignment (which would be discriminatory) but on the ground of sex (relying on the exception for single-sex schools); any other child who is legally male, the school might say, would be refused admission on the same basis. The pupil, on the other hand, would be likely to argue that she, as a transgender girl, was treated less favourably than a non-transgender girl who applied for admission. It is difficult to predict the outcome of such a case in the current climate. If a girls' school exceptionally admits some boys, it is more likely that the non-admission of a transgender girl who is legally male would be found to be discriminatory.
There is also an exception under the Equality Act which allows mixed-sex schools to admit boarders of one sex only. Again, this exception still applies where only a few pupils of the other sex are allowed to board.
There are general exceptions which allow the provision of separate facilities for girls and boys in school for reasons of privacy and decency. Of particular relevance to boarding schools is the exception relating to residential accommodation. This means it may not be discriminatory for a boarding school to refuse to admit a pupil to a single-sex boarding house and its facilities because of the pupil's sex or gender reassignment.
When refusing to admit a pupil to the accommodation or its facilities because of sex or gender reassignment, a boarding school must consider whether it would be reasonable to alter or extend the facilities in order to accommodate the pupil. It should also consider the comparative frequency of demand for the facilities by pupils of different sexes. Furthermore, the school must consider whether the refusal to admit a transgender pupil to boarding accommodation can be justified as a proportionate means of achieving a legitimate aim. For example, if the school could afford the necessary alterations and it could be shown that a number of transgender pupils would benefit from the new facilities, a court may find that a decision not to admit because of the alterations required was discriminatory.
How do schools actually deal with these issues?
In practice, some schools have been at the forefront of progressive policies for working with transgender pupils. A number of single-sex schools and boarding schools have made special arrangements for transgender pupils, particularly where the child is already a pupil of the school and has made a decision to transition away from the gender catered for by the school.
For example, St Paul's School, an independent girls' school in London, now has a "gender identity protocol" for pupils over 16 years of age who wish to be recognised as boys or as gender neutral. However, St Paul's School's charter on this subject states that it is still “only able to educate students who are legally and physically female”. (See press report here.)
Frensham School in Surrey, a mixed-sex independent school which only offers boarding places to boys hit the headlines recently as it has agreed to allow a transgender pupil (transitioning from a girl to a boy) to board in a single room within the boys' boarding house.
Despite these reported cases, charities working with transgender people, such as Mermaids UK, have expressed concern that schools are refusing the admission of transgender pupils on the grounds of biological sex.
This article reflects the law as at November 2017.