EHRC – Technical guidance for schools September 2023 update

On 22 September 2023, the Equality and Human Rights Commission (EHRC) updated their technical guidance for schools. The guidance outlines schools’ legal obligations under the Equality Act 2010 (the Act) including the duty not to discriminate against pupils with protected characteristics (e.g. disability, race, sex).

The guidance has now been reviewed to ensure references to the protected characteristics of sex and gender reassignment reflect recent legal developments in this area, which have evolved since the guidance was first published in 2014.

Changes to the guidance

Change 1

• The updated guidance has seen the removal of ‘Frequently Asked Question (FAQ)’ 3.35 which stated the following:

(Q) A previously female pupil has started to live as a boy and has adopted a male name. Does the school have to use this name and refer to the pupil as a boy?

(A) Not using the pupil’s chosen name merely because the pupil has changed gender would be direct gender reassignment discrimination. Not referring to this pupil as a boy would also result in direct gender reassignment discrimination.

This made it clear that it would likely be considered discriminatory to not use transgendered pupils’ preferred pronouns or name.

The reason behind the removal of this FAQ is unclear and no explanation has been given. There has been speculation that in removing this FAQ, the EHRC have implied it would no longer be considered direct gender reassignment discrimination to refuse to refer to a previously female pupil as a boy or use their chosen name (or vice versa).

However, schools should be aware that under the Act, sex and gender reassignment are protected characteristics and as such, it is important that schools treat transgender pupils with sensitivity and take into consideration their wishes on how they wish to be referred to. There is a risk that failure to do so could amount to gender reassignment discrimination under the Equality Act 2010.

It is anticipated that the Department for Education (DfE) will provide further clarity and guidance for schools on this issue shortly. In the meantime, this remains an area which can be difficult for schools to navigate and one which you may wish to seek further advice on.

This is highlighted in a recent case in which a teacher, employed in a primary school, brought legal proceedings against her school after she was dismissed for refusing to use an 8-year-old’s preferred pronouns and questioning the school’s policies on transgender students. The DfE has refused to comment on the individual case but has said “we expect schools to carefully consider their approach to these matters, to ensure that they make the right decision from the point of view of safeguarding children, accounting for parents’ views and those of medical experts where relevant.”

Change 2

• The guidance has also been updated in relation to separate sex-facilities and segregation. The guidance on these areas has been clarified to ensure it is consistent with the law around single sex toilet facilities in schools. The guidance now states:

“Sex segregation is permitted in certain situations, such as where it is necessary and appropriate to preserve privacy and decency. The law requires schools to provide single sex toilet facilities for children over eight and single sex changing facilities for children over 11. These may be either in sex-segregated communal facilities or in single-user lockable rooms.”

This update refers to sex as opposed to gender and as such, schools are able to segregate pupils according to their biological sex. The EHRC make it clear that males use the ‘boys facilities’ and females use the ‘girls facilities.’ It is recommended that transgender pupils are provided with private changing facilities.

The provision of separate changing facilities for transgender pupils is, at this time, only a recommendation. This is something schools may wish to consider taking into account their facilities, resources and need. This whole issue can be difficult for schools to navigate and we await further guidance from the DfE as to how this will operate in practice.

Change 3

• The updated guidance has also sought to clarify the legal definition of sex. The EHRC have added the following wording:

“Sex is understood as binary – being male or female – with a person’s legal sex being determined by what is recorded on their birth certificate, based on biological sex. A trans person aged 18 or over can change their legal sex by obtaining a Gender Recognition Certificate through procedures set out in the Gender Recognition Act 2004.”

Change 4

• The definition of gender reassignment has also been updated and now reflects the wording from the Act. It is a more concise and technical definition which seeks to clarify who is protected from gender reassignment discrimination.

“Gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign a person’s sex.

To be protected from gender reassignment discrimination, a person does not need to have undergone any medical treatment or surgery to change from their birth sex to their preferred gender.

A person can be at any stage in the transition process, from proposing to reassign sex, undergoing a process of reassignment, or having completed it. It does not matter whether or not a person has applied for or obtained a Gender Recognition Certificate, which is the legal document that enables trans people aged 18 and over to have their acquired gender recognised as their legal sex.

A child can have the protected characteristic of gender reassignment.”

It is expected that the DfE will be issuing separate guidance for schools on supporting transgender students which we understand is expected before the end of the calendar year. However, in the meantime, schools should be aware of the update to the EHRC technical guidance and if any situations arise where they may be unsure on the correct response, they should seek guidance and advice.

Schools may need to review any policies and guidance that are currently in place to ensure they reflect the updated guidance. A further review will be required once the DfE’s guidance has been published.