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1. We have a primary school aged boy who has said that they want to become a girl and the parents are not supportive. What should we do?
Gender reassignment is a protected characteristic under the 2010 Equality Act, which operates at the point of proposing to go through, or commencing, the gender-reassignment process. There is no minimum age on when the protections under the act apply.
In the event of a disagreement with parents as how best to proceed, schools must make decisions that are in the child’s best interests in accordance with their safeguarding responsibilities.
If the child is distressed at continuing to be referred to as male the school will have to take the impact this is having on their mental health into consideration when making decisions on how to proceed. Further actions could include implementing gender-neutral policies and in-school counselling services.
Schools should work in partnership with parents and be respectful of any gender-critical beliefs. However, if those with parental responsibility hold a view about gender identity which is not consistent with the child’s, the child’s view should prevail wherever possible.
Parents should be directed towards the school’s policies on equality and sign-posted to other sources of support, advice and guidance in order to help them come to terms with the change and in turn help support their child.
2. A pupil has informed of us of their intent to undergo gender reassignment but does not want us to tell their parents. What should we do?
This will largely depend on the age of the pupil.
Deciding to undergo gender reassignment is classed as a special category of data under the 2018 Data Protection Act.
A school is only able to share that information with the pupil’s consent (if they are deemed by the school to be of sufficient age or maturity – this is typically 12 or 13, depending on what's inand reference should be made to the school's data protection policy) or if one of the limited exemptions set out within the act apply, for example to protect the vital interests of the pupil.
The school should review its safeguarding policies, pupil privacy notices and data protection policies before sharing this information with anyone.
3. We have a transgender pupil and only provide single-sex toilets and changing facilities. Is this a problem?
Requiring a transgender pupil to use the toilets of the gender assigned to them at birth is potentially discriminatory.
The Equality Act makes it unlawful for a school to discriminate against a pupil by treating them less favourably when compared to others because of their gender reassignment, either directly or indirectly.
The school has a legal duty to promote tolerance and foster good relations between those with protected characteristics and those without
A school may need to justify a decision not to allow a pupil to use the facilities of the gender they identify with as being ‘a proportionate means of achieving a legitimate aim’.
Proportionate means appropriate and no more than is necessary and it need not be the only way of achieving the aim.
The legitimate aim is the objective justification for the action and could be, for example, to protect the dignity and privacy of pupils and/or the safeguarding of the pupils’ welfare if, for example, there are concerns about transphobic bullying.
However, it may be that other measures could achieve the same aim, such as the installation of private cubicles, allowing pupils who feel uncomfortable to change elsewhere and/or a wide-scale school campaign to stamp out transphobic bullying.
The EHRC's technical guidance advises schools to conduct a risk assessment and audit of their facilities.
In looking at these issues, it is useful to consider relevant guidance in this area.
The 2014 Equality and Human Rights Commission’s (EHRC) Technical Guidance for Schools in England suggests that a suitable alternative might be to allow the pupil to use private changing facilities, such as the staff changing room or another suitable space.
But even this could amount to unfavourable treatment as it still stigmatises transgender pupils and highlights them as being ‘different’.
Other potential solutions could be creating unisex toilets and changing facilities that can be used by all. However, this in turn could lead to objections about the removal of same-sex only spaces, particularly for females who have very different toilet and sanitation requirements.
Schools should also be mindful of the legal requirements for the provision of toilet facilities for those aged 8 and above.
The EHRC's technical guidance advises schools to conduct a risk assessment and audit of their facilities. This can help schools identify and consider whether any changes can be made to balance the rights of transgender pupils to live as their chosen gender as well as ensuring all pupils feel comfortable and safe when getting undressed.
4. We have received a number of complaints from parents alleging their children are uncomfortable changing in front of a transgender pupil. How do we handle this?
The school should follow the procedure set out in its complaints procedure and review how messages are communicated to parents. Schools should take care to communicate relevant policies, particularly those relating to equality and make the position clear.
The school has a legal duty to promote tolerance and foster good relations between those with protected characteristics and those without; this should be clearly communicated to parents and pupils. Schools also need to take care not to disclose any personal data relating to other pupils.
If those with parental responsibility hold a view about gender identity which is not consistent with the child’s, the child’s view should prevail wherever possible.
Often on closer investigation, it is not actually other pupils that are uncomfortable but the parents themselves. If any pupil feels uncomfortable they should be provided with access to other facilities to change to ensure their privacy. This is preferable to removing the transgender pupil from being able to change in facilities that correlate with their chosen gender.
5. We are planning a residential trip and have a transgender pupil attending. What do we need to consider?
Three things in particular that you will need to consider are:
In terms of sleeping arrangements, you will need to have a discussion with the pupil and their parents to ascertain whether they wish to sleep in dormitories or rooms of the sex which they identify with or whether they would feel uncomfortable, in which case alternative arrangements should be looked into e.g. a private room.
