A long-standing criticism of the government and the Equality and Human Rights Commission is the lack of guidance they have produced on how schools should interpret and apply the provisions of the Equality Act relating to gender reassignment.
A lack of guidance on transgender issues is not just an issue faced by schools. Confusion has been noted across multiple sectors, most recently in December 2021 in a report by the Women and Equalities Committee who specifically called for guidance on the single-sex service exceptions in the Equality Act.
The EHRC have now published new guidance on single sex service providers. They have done so in advance of the review of the Statutory Code of Practice, the "gold-standard" of Equality Act guidance which will happen later in the year. In this article we consider its relevance to schools.
Who is the guidance for?
The guidance is intended for those providing services, whether or not for profit, either to only one sex or separately to each sex. In general, a school is covered by a different regime under the Equality Act (part 6: Education) and schools are not specifically mentioned in this guidance. However, in some circumstances a school is regarded as a "service provider" under the Equality Act, for example where a school that hires out its sports facilities to local clubs and therefore there are a number of points that are of relevance to schools.
Further, this latest EHRC guidance is indicative of the way statutory bodies are interpreting the gender reassignment provisions of Equality Act and the way any future school specific guidance could be framed.
What does the guidance say?
The guidance explains the definitions of the protected characteristics of "sex" and "gender reassignment".
- "Sex" is understood as binary, being a man or a woman. For the purposes of the Act, a person’s legal sex is their biological sex as recorded on their birth certificate. A trans person over the age of 18 can change their legal sex by obtaining a Gender Recognition Certificate. Without a GRC a trans person retains the sex recorded on their birth certificate.
- Gender reassignment – is defined as someone who is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex. This means it probably includes those who identify as non-binary following Taylor v Jaguar Land Rover (for more see our blog here).
Service providers cannot discriminate against someone based on the protected characteristics of sex or gender reassignment. However, there are exceptions where access for groups who have these protected characteristics can be prevented, modified and / or limited if the service provider can show that it has a “legitimate aim” and their actions are a proportionate way of achieving that aim.
The guidance provides examples to illustrate the process of making a decision to exclude or make alternative arrangements for trans persons:
- A service provider can exclude trans women from emergency accommodation to female survivors of domestic abuse for reasons of trauma and safety;
- A leisure centre can exclude trans women from classes if there is a high degree of physical contact;
- A gym may introduce an additional gender-neutral changing room with self-contained units for transgender individuals as their separate sex communal changing rooms are open plan.
The guidance gives recommendations on what to consider in the decision making process. It states you should:
- Treat all individuals with dignity and respect;
- Be aware trans people might need to access services according to their biological sex rather than acquired gender (ie breast cancer screenings);
- Develop and apply a policy;
- Consider the rights of trans people alongside the rights of other service users;
- Balance the different interests and needs of those who use, or wish to use, your service;
- Record the evidence base and rationale for decision making.
Next steps for schools
The guidance is intended to be short and give practical examples. It lacks the nuance found in the legislation that a court would grapple with were a service provider alleged to have acted unlawfully. However the following advice can be gleaned:
- When making decisions about the inclusion or exclusion of transgender pupils ensure that you have a considered and documented decision. Think about what your legitimate aim might be, whether there is evidence to support the need for that legitimate aim and whether there is a less restrictive manner of achieving it. While the examples of exclusion given are permissible, they ought to only be done after thorough consideration with a strong evidence base.
- Consult other guidance specific for your situations. As stated above, Cornwall Council and Brighton and Hove City Council have provided school-specific guidance. Many sports governing bodies are releasing or updating transgender policies, so you may wish to consult those when making a determination about sports. For example, the FA’s Guide to Including Trans People in Football states that up to the age of 18, transgender players can play in whichever team they feel more comfortable with.
- The Guidance highlights that it can be useful to have a policy but service providers should be prepared to consider whether particular circumstances justify departing from the policy. For schools, the best transgender policies strike an appropriate balance between giving guidelines on the decision making process for parents, staff and pupils with giving the school suitable discretion in order to deal with cases as they arise. Policies ought to avoid a “one-size-fits-all” approach which will not allow a school to respond to the unique needs of each situation and may lead to a risk of indirect discrimination.
- Promote understanding as far as you can. A court recently held in L v Hampshire County Council that teaching children that transgender people should be treated “like human beings” was not an area that engaged requirements to teach political issues impartially (for more see here).
- The law in this area is developing rapidly. Ensure you are keeping up to date to ensure that your policies and practices are still compliant.
 The existing documents are:
- The Explanatory Notes to the Equality Act 2010 (text by the government to MPs explaining what the Act hopes to achieve)
- The Statutory Code of Practice on Services, Public functions and associations (2011) laid before Parliament in 2010 when the Equality Act was new
- The Equality Act 2010 and schools: departmental advice for school leaders, school staff, governing bodies and local authorities (2014)
- Technical Guidance for Schools in England (EHRC Guidance, July 2014)
If you require further information about anything covered in this briefing, please contact Katie Fudakowski or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, May 2022