Charlotte Melhuish and Clare Wigzell set out the legal and regulatory compliance obligations around the complex issues of pupils’ gender identity

 

Supporting pupils who are questioning their gender and enabling them to take part in all aspects of school life requires careful and sensitive consideration of what is in each pupil’s best interests and an understanding of intersecting legal obligations relating to equality, data protection, safeguarding and human rights. This area and the Department for Education’s policy position continues to evolve, particularly following the Cass Review and, at the time of writing, appears likely to continue to do so following the general election. This article explores governor duties and responsibilities in helping to ensure their school (including those that are single sex) meets its obligations to transgender and gender-questioning pupils with a particular focus on their duties under the Equality Act 2010 (the Act).

The Act recognises “sex” and “gender reassignment” as two separate protected characteristics. Pupils who are questioning their gender or who identify as transgender may have the protected characteristic of gender reassignment under the Act even though they will not have legally changed their sex. Governors should be mindful that “sex” under English law is generally interpreted as being biological sex assigned at birth (unless and until an individual aged 18 and over is permitted to change their legal sex, as recognised by the Gender Recognition Act 2004). Gender, on the other hand, is usually referred to as the identity of male, female, non-binary or gender fluid that a person identifies as.

Which pupils are protected under the Act?

A pupil who is proposing to undergo, is undergoing, or has undergone a process (or part of a process) for the purpose of reassigning their natal sex by changing physiological, or other attributes of their natal sex, is considered to have the characteristic of “gender reassignment” which is protected under the Act: a pupil does not have to be undertaking any kind of medical process in order to be afforded protection.

A pupil who describes themselves, for example, as “transitioning”, and who is taking personal steps to live as the opposite gender (for example, through the clothes they wear and/or the pronouns they adopt) is therefore likely to have protection under the Act.

What are governors’ legal obligations?

Governors, as the school proprietor, are responsible for ensuring legal and regulatory compliance. This includes compliance with the Act and the Education (Independent School Standard Regulations) 2014 (ISSRs).

Governors are responsible, under the Act, for ensuring their school doesn’t discriminate or victimise pupils as a result of their protected characteristics in relation to all aspects of school life. This includes admissions, access to school facilities (such as lavatories and changing rooms) and both formal and informal “education”, for example, sports, extracurricular activities and school trips.

The ISSRs require a school to meet the needs of all its pupils; to encourage respect for other people (including those with a protected characteristic, such as gender reassignment); to ensure that the teaching at the school doesn’t discriminate against pupils; and that the welfare, health and safety of all pupils is effectively safeguarded and promoted. Inspectors will consider how the school is meeting these regulatory requirements. Any failure risks not only a finding of non-compliance on inspection but also a claim of discrimination from the individual affected.

While questioning gender identity is not necessarily a safeguarding issue, it is essential that the welfare of the pupil is paramount in all decision-making. The Cass Review has recently identified that children and young people referred to specialist gender services have higher rates of mental health difficulties than the general population (though gender incongruence is not considered to be a mental health condition in itself) and that this group is at particular risk of transphobic bullying, breakdown in relationships with families, online grooming or harm, and cultural or religious pressure. Governors should therefore ensure that senior leadership (particularly the designated safeguarding lead) are alive to the potential vulnerabilities of transgender or gender-questioning pupils who may be at greater risk of, for example, bullying in and outside of school.

The draft June 2024 version of the statutory guidance ‘Keeping Children Safe in Education’ (KCSIE) specifically urges caution when supporting children questioning their gender “as there remain many unknowns about the impact of social transition and children may well have wider vulnerabilities, including having complex mental health and psychosocial needs, and in some cases additional diagnoses of autism spectrum disorder and/or attention deficit hyperactivity disorder.”

The guidance goes on to add that schools should consider the broad range of the pupil’s individual needs, “in partnership with the child’s parents (other than in the exceptionally rare circumstances where involving parents would constitute a significant risk of harm to the child), including any clinical advice that is available and how to address wider vulnerabilities such as the risk of bullying.”

It is worth pausing here to note that the involvement of parents is a somewhat controversial issue, not least because of the pupil’s personal information rights. Ultimately, schools’ primary consideration is to act in the best interests of the pupil concerned and the related difficult and nuanced decisions that schools have to take are unique to each pupil and their circumstances. At the time of writing, the current version of KCSIE, and the non-statutory ‘Guidance for Schools and Colleges in relation to Gender Questioning Children’ is not final and may be subject to change so we recommend that schools carefully watch this space and take legal advice on individual cases where necessary.

While the day-to-day decisions and running of the school is delegated to senior management, it is ultimately for governors to satisfy themselves that school policies, procedures and practices comply with the relevant requirements of the ISSRs, statutory safeguarding guidance and the Act. All aspects of school “life” must be considered for example, admissions, behaviour management and exclusions, the school curriculum, teaching, facilities and the ethos of the school. Governors should continually review school practices with the support and input of senior management to critically assess whether the school is meeting these duties. For example, is there an inclusive school environment? How is the school teaching mutual respect and tolerance? Have staff been suitably trained? How does the school community as a whole approach questions about gender and sex? Is there a pattern of bullying involving transgender or gender-questioning pupils? How is this being addressed?

Effective monitoring will help identify and address any “issues” on the ground, tackle any potential discriminatory practices and ensure effective oversight of the school’s compliance with legal and regulatory requirements. It will also help, for example, identify school facilities which may require adaptation or improvement.

What are the practical issues to consider

There are likely to be a number of practical issues affecting many aspects of school life, and governors should be protective in ensuring that the school is inclusive while meeting legal obligations and considering the welfare of all pupils at the school. Lavatories and changing facilities are often cited as being difficult areas to navigate for gender-questioning pupils and their schools. Schools are required to provide sex-separated lavatories for pupils aged eight or over (apart from individual lavatories in fully enclosed rooms), and suitable changing accommodation and showers for pupils who are aged 11 years. “Sex” in this context is understood to mean natal sex. Therefore, where a gender-questioning or transgender-identifying pupil doesn’t wish to use the single sex facilities that correspond with their natal sex, a practical solution, where feasible, could be to make available a facility with a fully enclosed room for that pupil. Decisions such as this will always depend on the pupil and the nature of the school site, as what is appropriate for one school/pupil may not be for another.

The curriculum and school resources should also be monitored closely to ensure that they foster positive attitudes to gender reassignment, break down any stereotypes and don’t contain or promote discriminatory materials. The Department for Education has recently issued draft new statutory guidance on relationships, sex and health education that schools must have regard to in this respect (once finalised).

Governors should bear in mind the need to promote equal opportunity for all pupils, that is, by maximising social integration in all aspects of school life and minimising segregation of transgender or gender-questioning pupils whenever reasonably possible. This would include, for example, participation in sports. Schools should take care not to discriminate unlawfully against a pupil from taking part in sports as a result of their gender identity, unless there is sufficient justification for this (for example, where the pupil has a particular physical advantage, or where there are safeguarding or health and safety concerns). The UK Sports Council has published guidance on transgender inclusion in domestic sport which may be helpful in relation to specific sports. If participation may not be appropriate, schools should discuss with parents and the pupil concerned how best to manage this.

Many schools now have gender-neutral uniform policies, or flexible uniform policies which allow pupils to choose between skirts and trousers, for example. This is a sensible approach to avoid difficulties arising around uniform. Transgender or gender-questioning pupils may also have concerns in relation to wearing particular items of uniform, for example, school swimwear due to the revealing nature of this type of clothing. To address this, schools may wish to permit all pupils to wear skirted swimsuits and/or short wetsuits, as an alternative to traditional swimwear. Governors should ensure effective oversight of their school’s approach to such matters, including monitoring any concerns and how these are being addressed “on the ground”.

The Equality and Human Rights Commission (EHRC) has published guidance for separate and single-sex service providers with regards to the sex and gender reassignment provisions in the Act. This guidance, while not legally binding and not referring to schools specifically, is intended to help service providers comply with their legal obligations. While schools don’t fall into the category of “service providers” towards their pupils, they will often provide services to their parents, or even to members of the public when using their facilities. Governors may therefore wish to acquaint themselves with the guidance, particularly the examples contained in the guidance to help understand where the EHRC considers the prevention, limitation or modification of a transgender individual’s access to services may be legitimate.

Under the Act, schools must not discriminate against applicants in their admission arrangements. However, this does not apply to single sex schools insofar as this relates to “sex” (being a protected characteristic); that is, single sex schools may discriminate against members of the opposite sex in their admission arrangements. Note, however, that the exception does not apply to “gender reassignment”. However, single sex schools may exceptionally admit members of the opposite sex without jeopardising their single sex status, provided “their numbers are comparatively small and their admission is confined to particular courses or classes”.

While it is clear that, for example, a pupil who is biologically male but who identifies as female, must not be refused admission to a single-sex boys school on the basis of sex (as that would be gender reassignment discrimination), the position is less clear cut should a pupil who identifies as male but is biologically female apply to the same school. The Department for Education’s draft guidance on gender-questioning children advises that “single-sex schools can refuse to admit pupils of the other biological sex, regardless of whether the child is questioning their gender” but this position has not been determined by the courts. While refusing an application in the second scenario above can be justified as a proportionate means of securing single-sex education as permitted under the Act, we would nonetheless highlight the risk of challenge to such decisions and advise that a cautious, case-by-case approach is taken to such applications, with documented decision-making and legal advice being taken as appropriate.

Another key practical issue for schools to contend with is requests from pupils to use names and/or forms of address (that is, pronouns) corresponding to their gender identity (when different to their natal sex). A transgender pupil may have reached a pivotal point in the transition process where they inform their school that they wish to be known by a different name and/or pronoun and such requests should be handled with great sensitivity. Governors should be aware that there is nothing to prevent schools making changes on their information management systems to pupils’ preferred names and pronouns in accordance with their wishes where it is in their best interests to do so. Such decisions require careful consideration about what is in the pupil’s best interests and their wishes, including in relation to the involvement of parents. The school is however required to record the biological sex of pupils on their attendance and admissions registers (though note that from August this year schools must also ensure that the admissions register contains the name the pupil uses at school (if different to their full name). Schools may wish to consider training for relevant staff on managing and responding to such requests. Such training may include some of the practical implications of such changes being made, such as ensuring that the changes feed into letters home, school reports etc, subject always to data protection considerations and the views expressed by the pupil.

What broader implications should be considered

As noted above, governors are ultimately responsible for ensuring compliance with the Act, the ISSRs and statutory guidance, which includes meeting the needs of all pupils (that is, both the transgender or gender-questioning pupil and their peers) within the school and ensuring that the welfare, health and safety of all pupils is effectively safeguarded and promoted. Inspectors will consider how the school (and by default, the governors) is meeting these regulatory requirements; any failure risks not only a finding of non-compliance on inspection but also a claim of discrimination from the individual affected.

In order to mitigate against the risk of non-compliance on inspection and/or a claim of discrimination, it is recommended that governors, along with staff, receive training appropriate to their role. Such training should be regularly refreshed, and may cover (note this list is not exhaustive):

• The legal framework (arising under the Act, the ISSRs and statutory guidance).
• The practical issues identified and discussed in this article.
• Inclusion/unconscious bias.
• Data protection, and

The needs and experiences of each pupil will be unique, and to that end, it will be important for schools to maintain an open, flexible dialogue with the pupil (and where appropriate, subject to data protection considerations, their parents) so that their individual wishes and needs can be ascertained. It therefore follows that blanket policies and approaches should be avoided.

Clearly this is an evolving area of law and the Department for Education’s position is not yet fully known. It was unclear at the time of writing what stance the new government will take on this issue and whether the final Department for Education guidance will be further delayed. As such, we would advise keeping transgender issues under review and seeking legal advice when appropriate.

 

Charlotte Melhuish is a partner and Clare Wigzell an associate in the independent schools’ team at law firm Stone King