Briefing

When he becomes she, or she becomes he, or she/he becomes xe - a look at guidance available to schools on gender reassignments amongst pupils

Posted by: Jonathan Eley | Date posted : 13/04/2017

Available statistics suggest that the numbers of young people questioning their gender identity and taking steps to reassign their gender are increasing dramatically, and some of those young people are very young indeed.

Gender reassignment is an increasingly common issue for schools, whether with existing pupils or applicants. The issue brings with it all sorts of challenges for schools: some practical (what to do about loos, sport, uniform, name changes, exam registration, etc); some educational (how to educate pupils, staff and parents to ensure that the issues are understood and that pupils feel understood and supported); some organisational/legal (eg what exactly are a school's legal obligations, or can an all-girls school continue to educate a female-to-male trans pupil), and some to do with safeguarding (eg how to prevent or reduce bullying and trans-phobic behaviour, or what to do if parents are opposed to their child's wishes, etc).

And of course the impact on pupils and parents and on a school if a situation is not handled well can be significant. Aside from the legal implications – pupils and prospective pupils who are reassigning their gender are protected from less favourable treatment on the grounds of gender reassignment – there are potentially very significant consequences for a pupil's health, safety and well-being; potential regulatory implications; and of course the possibility of unwelcome press interest.

Yet despite this, there is a striking lack of guidance and direction for schools by the government. This despite the fact that in January 2016 the Women and Equalities Select Committee published a report – Transgender Equality – in which it recommended that (amongst other things): "More needs to be done to ensure that gender-variant young people and their families get sufficient support at school."

There is government non-statutory advice from the Department for Education for schools on their obligations under the Equalities Act 2010 here, and that includes a brief section on gender reassignment (on page 17ff).

And that seems to be about it from the government. For instance, there is no mention in the recent policy statement on Relationship Education of trans issues.

So what other guidance is there for schools on this subject?

  • There is the Technical Guidance for Schools in England produced by the Equality and Human Rights Commission (EHRC) (here). This document provides guidance to schools on all of their obligations under the Equality Act, so it covers a much wider range of issues than just gender reassignment. As a consequence, one needs to dig around to find the sections that relate to gender reassignment, but they are there, albeit not many or extensive. As well as an explanation as to what exactly is meant in law by gender reassignment (in chapter 5) and what protection is afforded to pupils who are going through the process of moving away from their birth sex to their preferred gender, there are sections and/or examples on school facilities (in chapter 3), on exclusions (in chapter 4), on residential accommodation (chapter 9) and on name changing (chapter 3).
  • There is also the EHRC's Technical Guidance on the Public Sector Equality Duty (here), applicable to schools in the public sector.
  • There is some useful guidance written by a partnership of bodies in Cornwall in 2012 and updated in 2015, here. This document is referred to by the government in its non-statutory advice to schools on the Equality Act, so it appears to have been endorsed and adopted by the DfE.
  • There is also similar guidance here produced by East Sussex County Council and some guidance produced by the Gender Identity Research and Education Society (here), including on transphobic bullying in schools.

This is not an exhaustive list of guidance for schools on trans-gender issues, but there is not a great deal more.

So what should schools be doing, particularly those schools in which gender reassignment has not to date been an issue? The answer is to prepare in anticipation. Prepare by reading some of the guidance above – the Cornwall guidance is probably as good a starting point as any – and start thinking through the issues. Prepare by asking yourself how ready the school is to deal with a pupil or prospective pupil who is considering a reassignment of their birth gender or is undergoing that process (and bear in mind that under the Equalities Act gender reassignment need not be a medical process – it is a personal process involving moving away from one's birth sex). Prepare by examining your existing policies and practices and arrangements from this perspective (your uniform policy, your sports arrangements, the facilities you have for changing and for loos etc) and considering to what extent those need to be adjusted. Prepare by reviewing your curriculum and your PSHE schemes of work and your pastoral arrangements and considering the extent to which your pupils and other members of the school community would understand and support someone undergoing gender reassignment. (What training have staff had? How alive to the issues are your governors? etc). Don't wait for a pupil to disclose to you that they are reassigning their gender, or for a prospective parent to contact you to say that their child is going through that process, before considering the issues.

If you require further information on anything covered in this briefing please contact Jonathan Eley (jonathan.eley@farrer.co.uk) or your usual contact at the firm on 020 3375 7000. Further information can be found on the Schools page of our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2017