23 January 2020

Transgender Pupils: Key Considerations for Schools

Appropriate support for pupils

Independent schools vary widely in terms of their size, pupil population, location, provision and Integrating transgender pupils into all aspects of school life is an issue which a number of schools have had to respond to. The key is to give careful consideration as to the whole school community whilst also ensuring pupils are appropriately supported. With this in mind, we have developed this transgender guidance note to help provide information for schools on how to effectively support and accommodate such pupils whilst also ensuring compliance with the school’s legal obligations. The key to much of this (as with many issues) is good communication (subject to any issues of confidentiality as outlined below) with all those concerned including parents and the pupil.

The Legal Context

It is important to understand that sex and gender have distinct meanings. A person’s sex is their biological and physiological characteristics, whereas a person’s gender refers to the socially constructed roles, behaviours, activities and attributes that society considers appropriate for men and for women. A pupil is considered transgender if their gender identity or expression differs in some way from the sex assigned to them at birth.

 

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The Equality Act 2010 (the “Act”) prohibits discrimination against those who are transgender under the protected characteristic of ‘gender reassignment’. A person will be protected on the basis of their gender reassignment if they are proposing to undergo, is undergoing, or has undergone a process (or part of a process) for the purpose of reassigning their sex by changing the physiological or other attributes of their sex.

It is unlawful for schools to treat pupils less favourably because of their gender reassignment. This covers all aspects of school life including admissions and exclusions, provision of education and access to any benefit, facility or service provided by the school. The School should not subject transgender pupils to any other detriment either. This protection is however only one way; not being transgender is not a protected characteristic. Schools are therefore free to take steps to meet the needs of transgender pupils without inadvertently discriminating against non-transgender pupils.

The Act also provides protection to others (such as staff) where gender reassignment is relevant; this note focuses on pupils only.

Initial Considerations

The first step is recognising when a pupil is afforded protection. The Act provides protection for anyone who is undergoing, has undergone or is proposing to undergo a process (or part of a process) of reassigning their sex by changing physiological or other attributes and that protection comes into effect as soon as they make their intention known to someone. This means that a pupil will not have to be undertaking a medical procedure to change their sex in order to be protected, but must be taking some steps to live in the opposite gender or is proposing to do so.

A pupil may wish to start wearing clothes that are associated with their gender identity; change their name or a pronoun (he/she/they/zie); or wish to use facilities appropriate to their gender identity rather than biological sex.

Whole School Approach

The Act, and the Independent School Regulatory Requirements (“ISSRs”), require schools to provide an inclusive environment which meets the needs of all pupils irrespective of gender. Indeed, school inspections evaluate how well schools encourage respect for other people; ensure teaching does not discriminate against pupils on the basis of any protected characteristic under the Act; and that pupils’ welfare, health and safety are promoted and safeguarded, for example, where a child may be at risk of being bullied because of their gender reassignment.

These principles apply to all independent schools; schools found to be non-compliant not only risk a regulatory failing but also a claim of discrimination. Schools, therefore, need to be “alive” to transgender matters by acknowledging that there may be transgender pupils within the school community and ensuring that this is reflected in the wider operations of the school, for example, by embedding equality and respect for others into the school curriculum, assemblies and whole school environment. These will, in turn, help challenge gender stereotypes and create a safer learning and working environment for all pupils and staff. Ensuring that anti-bullying, safeguarding and equality policies are effectively implemented and monitored – in which the school challenges and records bullying and prejudice based incidents – are essential in tackling potentially discriminatory practices in schools. Equality training for staff (and governors) which covers all aspects of discrimination is invaluable and helps to demonstrate the whole school approach to equality. Schools should also consider whether staff training on transgender language and trans-inclusion would be beneficial in ensuring fairness and inclusion for transgender pupils within the school.

 

Specific Considerations

Wherever possible, pupils should be given the opportunity to say how they identify or describe themselves. This will help inform schools as to how best to accommodate such pupils. This can be particularly challenging for younger pupils (or pupils with SEND) who may need the support of parents (where appropriate) or a trusted adult to assist them in making their preferences known.

As part of this, it is good practice to demonstrate:

  • Good communication between the school and those concerned, subject to any duty of confidentiality;
  • Documentation of discussions of what adjustments may be considered or needed including timescales for any agreed action (the ‘essential paper trail’);
  • Follow up to ensure what has been agreed is working in practice for both the pupil and the school; and
  • Ensure communication pathways between the school and the pupil / their parents remain open to ensure that any change in the pupil’s preferences are known and respected.

Specific considerations may include:

1. Uniform and dress

Uniform policies may be gender specific. A transgender pupil has the right to dress in a manner consistent with their gender identity. Pupils should be given the choice of approved items of uniform (including sports kit); a gender-neutral or flexible dress code giving pupils a choice will not be discriminatory on the basis of gender reassignment. Schools should consider removing gender labels from their uniform policies, opting for “uniform traditionally worn by girls/boys” or “uniform intended for males/females” rather than “girls/boys uniforms”.

A few independent schools have already scrapped distinctions between uniforms in an effort to accommodate transgender pupils.

2. Change of Name

A child should be registered at the school in their legal name rather than their preferred name. However, a pupil’s wish to be known by a different name (in line with their chosen gender identity) should be respected and all staff should be informed of the chosen name and pronoun. Not using the pupil’s chosen name or pronoun would be discrimination.

For exams and exam certificates, pupils must use their legal name rather than their preferred name i.e. the name referred to on a pupil’s birth certificate or passport. It may however be possible to arrange for exam certificates and papers to be issued in a pupil’s preferred name, if this is the child’s preference.

3. Boarding Issues

An issue which is likely to arise for boarding schools is a practical one; what to do if a child in a single sex boarding house wishes to change their gender identity? The school will largely be governed by the practicalities of any boarding arrangements, again, good communication and a managed process will be key.

In practice however, a change of boarding house presents some challenges – particularly if a school is restricted in terms of facilities and rooms available. Schools are not obliged to provide separate bed spaces or allow transgender pupils to sleep in boarding houses appropriate to their gender identity; schools are however expected to consider what adjustments can be made to ensure the pupil is not excluded or suffers any other detriment. Carrying out an appropriate risk assessment can help inform schools as to what adjustments can be made to accommodate the pupil. Such an assessment should take into account the wishes of the individual pupil, any requests from the pupil as to confidentiality, any health and safety considerations and the potential implications of any proposed adjustments on other pupils and the wider school community (safeguarding should not be an issue specific to transgender pupil aside from what the school should already have in place to keep children safe). If a separate room cannot be provided, this should be explained to the parents and pupil together with what adjustments can be made to accommodate them. The school will need to consider bathroom arrangements (whether a single room is en-suite) as well as changing facilities.

4. School Facilities

A policy or practice that prevents a transgender pupil from accessing appropriate school facilities because of their gender identity constitutes an act of discrimination. As such, schools need to give careful consideration as to how best ensure equality of opportunity whilst also ensuring the welfare, health and safety of all pupils.

Where reasonably practicable, transgender pupils should be able to access facilities around the school site (such as changing rooms, toilets, bathrooms etc.) which correspond to their gender identity, rather than their biological sex, for example, through provision of gender neutral toilet facilities. Use of changing facilities by transgender pupils should be carefully risk assessed, in discussion with the individual pupil, to ensure the safety and comfort of all pupils (including the pupil concerned) and minimise any perception of social exclusion.

Reasonable alternatives should be considered as part of the risk assessment, such as alternative changing areas, use of a private area or a separate time to change. Schools could also consider renaming existing disabled toilets/changing facilities as “accessible” for example. Not to do so may be considered discriminatory.

5. Physical Education

Physical education is a key aspect of the curriculum and is a proven positive contributor to the mental and physical wellbeing of pupils. It is therefore important that all pupils are able to engage in physical education at school.

Where possible, transgender pupils should be permitted to attend physical education classes and play sport that reflects their gender identity rather than their biological sex. There are however a number of key considerations that schools should keep in mind to ensure the safety of its pupils:

– Some female-to-male transgender pupils may bind their chests to hide unwanted breasts which may lead to shortness of breath or pain during exercise. Staff should be aware of the risks of chest binding and be alert to the warning signs.

– After puberty, transgender pupils may have physical advantages or disadvantages than their peers, in particular male-to-female transgender pupils may be physically stronger and/or larger in size than female peers. Schools must ensure PE lessons are planned appropriately to minimise the risk of injury, as well as any embarrassment or unwanted attention for the transgender pupil.

– Schools should make appropriate enquiries (on a no names basis) regarding the provision of toilets and changing facilities for transgender pupils at away matches with a view to protecting the pupil’s dignity and their privacy.

6. Residential Trips

Similar considerations to the use of school facilities and those with boarding accommodation will accompany the issues which may arise when considering school trips. Any specific considerations and how to accommodate the pupil should be discussed and agreed with the parents and pupil wherever possible.

Where the trip involves a foreign destination there may be laws or cultural considerations that may impact on a transgender pupil. In some countries, being transgender is illegal, and in others, it is a requirement to declare your transgender status. The School should contact the foreign office to establish any additional requirements in advance.

7. Single Sex Schools

Considerations for a transgender pupil in a single sex school will be similar to those outlined above. A transgender pupil in a single sex school will be able to remain at the school and thought should be given to the practical issues involved. A transgender pupil should not be subject to any detriment for example, asking them to leave on the grounds of their transgender status. Specific advice should be sought on this issue should it arise.

8. Confidentiality and Information Sharing

A transgender pupil has the right to privacy, which includes the right to keep their transgender status confidential, including from their parents, unless the pupil has expressly confirmed they are happy for their status to be known.

This will of course be subject to any prevailing legal obligation to disclose a pupil’s personal data e.g. where a court order requires disclosure or a school is obliged to disclose confidential information in accordance with their safeguarding duties. In cases where the transgender pupil does not have the support of their parents it is important for schools to keep in mind that they are supporting the pupil and should act in accordance with their wishes whenever possible, especially if the pupil has the necessary capacity to take control of their own personal data (usually from the age of 13 but they can be younger).

Some of the information about a pupil’s transgender status is likely to be ‘special category data’ under data protection law. Even where the information is not special category data, it is sensitive nonetheless. This information can include, for instance, the gender the pupil was assigned at birth, their legal name and any steps taken, medical or otherwise, to live in the opposite gender.

Therefore there is an enhanced onus on schools to ensure that:

  • hey keep that information secure and confidential in accordance with the school’s data protection policy and obligations
  • staff access to this sensitive information is restricted to those who have a need to know about it
  • it does not include excessive information that is no longer needed by the school, and
  • information is kept accurate and up-to-date including where a pupil’s intentions or wishes change, e.g. in relation to their chosen name, gender and/or pronoun.

Trans pupils (as with any other pupils with requisite capacity) also have a non-absolute right to decide when and where, and with whom, their information is shared. This includes sharing and expressing their gender identity in some circumstances within school but not others, for example in a one-on-one situation but not in the classroom. Staff should be aware of the pupil’s individual preference and should respect this where appropriate.

Summary

Gender reassignment is just one of the protected characteristics under the Equality Act and as such schools should treat this issue in the same way and with the same sensitivity as they treat other types of discrimination, for example, race or disability. Schools need to ensure that their policies and procedures are up to date and reflect the latest regulatory guidance.

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About the Author
Emma Glazzard, Solicitor

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