It’s still unlawful to discriminate against trans kids

It’s September, and kids are back at school. Lots of children dread the start of a new school year after the summer holidays. But for some trans kids, going back to school means facing a new wave of discrimination.

On 1 September 2026, new guidance for schools came into force. During the consultation on this guidance, Good Law Project warned that it could encourage schools to discriminate against trans pupils. The government ignored us – and those children could now be paying the price.

But trans kids still have rights – and it is still unlawful for schools to discriminate against them. 

The Equality Act 2010 makes it unlawful for schools to discriminate against pupils, whether directly or indirectly, because of protected characteristics such as gender reassignment. Schools aren’t allowed to unlawfully discriminate against pupils, even if they say they’re following statutory guidance.

Direct discrimination is when a pupil is treated less favourably because of their protected characteristic. For example, this might include allowing pupils who aren’t trans to choose a nickname for teachers to use, but refusing trans pupils to do the same without asking their parents. Schools must be particularly careful when it comes to direct discrimination – this is always unlawful unless there are specific exemptions under the Equality Act.

Schools also need to watch out for indirect discrimination, where policies seem to be treating pupils in the same way, but actually have a more negative impact on children with a protected characteristic. For example, if you make trans children use toilets which match their sex recorded at birth, that would have a much greater negative impact on a trans girl forced to use boys toilets, than it does on boys.

A gendered uniform policy, which requires girls and boys to wear different uniforms, could also result in discrimination. We’re suing a school where girls have to wear skirts and boys have to wear trousers. The school says a trans boy can’t wear trousers without specific medical evidence. We think this uniform policy is harmful for all kids, but it has a particular impact on trans pupils – which we think is discrimination. Such policies can also be indirect discrimination because of sex – a rule that girls should wear skirts and boys should wear trousers could be worse for girls than for boys.

Unlike direct discrimination, policies which might otherwise be indirect discrimination can be justified. But schools have to show that they are a “proportionate means of achieving a legitimate aim”. This means that schools have to show they have thought about how best to avoid discriminating against trans pupils.

For example, it’s likely to be unlawful discrimination if schools simply tell trans pupils – particularly those who are not out to their peers, or who have socially transitioned for a long period – that they must use the toilet and changing facilities matching their sex as recorded at birth. Instead, schools must provide a suitable alternative, and wherever possible should make sure that this is just as good as the facilities which non-trans children can use.

Schools must also think carefully about how they can avoid outing trans pupils when they implement new policies. Schools should also review their policies to ensure that needless gendering is removed where possible, as these may disproportionately impact trans kids. Schools should think creatively about how they can adapt their approaches and policies, rather than trying to treat trans kids as if they were simply their sex as recorded at birth. If they don’t, their approach may not be considered proportionate, and could amount to unlawful discrimination.

Schools should be able to make sensitive and flexible decisions within the law which make sure trans kids can use appropriate facilities. We’re defending one school that is trying to take an inclusive approach, but is now facing a legal challenge as a result. 

We know many trans kids, their families, and their carers are uncertain and afraid, particularly as schools tell them they have no choice in deciding how to change their policies. But schools do still have many choices – and they also have legal obligations not to discriminate against the trans children in their care. 

Trans kids and their carers can ask schools if they’ve given enough thought to ways in which new policies might harm trans children. They can remind them that the Equality Act requires them not to discriminate against trans pupils. And they can ask them to explain how they’re making sure trans children are protected, and that their needs are properly met.