Trans children and their parents face an uncertain time when starting at new schools or transitioning.
Schools, too, have little official guidance to assist them and may not have had to manage similar circumstances before. The law isn’t always easy to understand and in some areas, it hasn’t yet been clarified by the courts.
To help parents and schools, Good Law Project has commissioned some expert legal advice which we hope will help schools in England and Wales understand their responsibilities and help families understand their rights.
The legal advice was produced by Dan Squires QC, a leading expert in education and discrimination law.
The advice focuses on the obligations set out in the Equality Act 2010. This legislation prohibits schools from engaging in various forms of discrimination, including on the basis of protected characteristics such as ‘sex’ and ‘gender reassignment’. The law also includes various exceptions that allow certain kinds of activities that might otherwise be discriminatory, such as, for example, single-sex schools.
The advice says that ‘sex’ is likely to be understood as a child’s birth or biological sex rather than their gender identity. However, the protected characteristic of ‘gender reassignment’ is a wide one. It includes anyone proposing to undergo, undergoing or having undergone a process of reassigning their sex, by changing either the physiological or other attributes of sex. It is not confined to those who have undergone surgical transition or who have obtained a Gender Recognition Certificate. The protected characteristic of ‘gender reassignment’ is also likely to cover non-binary and gender-fluid identities.
Reading detailed legal advice is not for the faint-hearted, so we have set out a summary below. For the full reasoning, you will need to read the advice.
- Can a mixed school refuse to admit or exclude a child because they are trans?
No, they can’t; to do so would be unlawful discrimination on the basis of gender reassignment.
- Is a school required, as a matter of law, to treat a child as being of the gender with which they identify? If so, what are the main practical components of this obligation? If not, what obligations, if any, does the school have to that child?
A school isn’t required to treat a child as being of the gender with which they identify in all situations, but must be careful not to implement policies which unfairly discriminate against trans students.
A school cannot prevent trans students from benefiting from the same policies as other pupils just because they are trans. For example, if there is a practice where children can be referred to in class by a name other than the one under which they are registered, it would be direct discrimination and unlawful if this was not extended to a trans child who wanted to be known by a new name.
Even policies or practices that are not directly about trans children may be unlawful if they disproportionately disadvantage them. For example, a school may have a uniform policy which requires pupils to wear clothing that corresponds with the sex they are registered with at the school. This might represent a disadvantage for trans students, who may wish to wear the clothing associated with the gender they identify with. The school would have to identify a legitimate aim and be able to demonstrate why it was proportionate to prevent trans children from wearing clothes in line with their gender identity.
Schools should review their policies and practices to consider whether any of them might disproportionately impact trans students. A school should identify the aim of each policy or practice, and ask itself whether implementing it is really necessary to achieve that aim, given the impact it might have on trans students. Alternative or amended policies should be explored, to see whether the underlying aim might be achieved in a way which doesn’t have the same negative impact on trans students.
- Can a girls’ (or boys’) school admit a trans girl (or boy)? If it does so, will it lose its single-sex status?
There aren’t any rules or official guidance which deals precisely with this issue.
However, single-sex schools are able to admit pupils of the opposite legal sex in exceptional circumstances without losing their single-sex status. A recognised example of this is a single-sex school that admits children of members of staff irrespective of sex. There is no obvious reason why this exception could not be used by schools to allow trans children to attend single-sex schools which align with their gender identity rather than their legal sex.
- Can a girls’ (or boys’) school exclude a trans boy (or girl) who is a current pupil on the basis that they are a girls’ (or boys’) school and the pupil identifies as male (or female)?
No; to do so would be unlawful.
- Can a girls’ (or boys’) school refuse to admit a trans boy (or girl) on the basis that they are a girls’ (or boys’) school and the pupil identifies as male (or female)?
No; again, this would be discriminatory.
- Can a girls’ (or boys’) school refuse to consider admitting a trans girl (or boy) on the basis that she (or he) is legally male (or female)?
Single-sex schools are allowed to discriminate on grounds of sex in relation to the children they admit as pupils. However, single-sex schools are also permitted, as an exception, to allow children of the opposite legal sex to become pupils (see question 3).
The issue of whether a school is under an obligation to consider admitting a trans child under this exception is not something which has been clarified by the courts
However, trans children are more likely to want to attend an opposite-sex single-sex school than their cisgender peers and so are likely to be disproportionately disadvantaged by a refusal to consider admitting them. On that basis, it will be likely that a school will have to demonstrate an objective justification for having such a policy. If they cannot establish this, the school’s decision would be unlawful.
- Will the answers differ for different types of schools?
As set out in questions 3-6, the obligations on single-sex schools are different from those on mixed schools.
There are no exceptions for faith schools and the law treats them the same as non-faith schools in relation to trans pupils.
Independent schools have the same obligations as are set out above.
Maintained schools, free schools and academies
The governing bodies of maintained schools (schools run by local authorities) and the proprietors of free schools and academies are subject to an additional obligation called the public sector equality duty. This is a duty to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between persons who share a relevant protected characteristic and persons who do not. Schools have to take into account this duty when making decisions about how they are run, including in relation to admission criteria and uniform policies.
This is an obligation on the school to think through the impact of its actions on trans students. If it can’t demonstrate it has considered and taken into account the impact of a particular policy on trans students, it will have breached the public sector equality duty and acted unlawfully.
You can read the full advice by Dan Squires QC here.
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