Gender self-ID / Equality Act

[abitofanangrybird]

I don't have much posting history but am a lurker of a number of years who is currently really troubled by the gender self-ID issue. My child's school has recently been challenged by Transpire and as such has decided to allow children to use the toilets they feel match their self-identified gender. Is there anyone who can help me to understand the obligations of the school in relation to the Equality Act 2010 please? The Head is using the Act as legal justification for the school's stance but then insists that their position does not and will not extend to changing and showering facilities.

My questions are: Is it really so clear cut in the Equality Act that the school has no choice? Could the Act be used by Transpire (or another pressure group) to extend the changes to include changing and showering facilities? Is there anything in the Act that allows changing and showering facilities to be approached differently to toilets? My requests to the Head to qualify the decision to limit the decision to the use of toilets has so far been ignored and I am keen to know the rationale behind why toilets are ok but changing rooms and showers are considered a step too far.

The school also says that it will not allow any child to self-ID and use any toilet they choose. Apparently it must already be working with the child to make sure that they have the right support in place before they are given permission to use the toilet they feel matches their gender. Are they allowed to impose these conditions under the Equality Act? Could my daughter claim to self-ID as a boy and legitimately use her rights set out in the Act to insist on using the boys' toilets without any further 'support' or discussion?

I want to have a reasonable and considered conversation with the Head but at the moment I feel as though I am being fobbed off a bit. I would like to understand the school's true obligations before I respond further. Any advice you can pass on would be much appreciated.

[Kyanite]

I would have a look at this thread www.mumsnet.com/Talk/womens_rights/3199413-interesting-school-toilets-story

There's a helpful link in this tweet. Transgender organisations are misleading schools on the law. twitter.com/Transgendertrd/status/976130395086475264

[OldCrone]

You could direct the head to transgendertrend school's guidance to balance the information they've been given by the trans pressure group.

www.transgendertrend.com/transgender-schools-guidance/

I'm not sure how clear it is on the legal position, but it does emphasise that the safety and wellbeing of all the children in the school is important, rather than the rights of the trans child overriding everything else.

[UpstartCrow]

Is it really so clear cut in the Equality Act that the school has no choice?

No, not at all. schools are obliged to provide same sex toilets for children over 8 years of age.
Some cultures and religions require same sex toilets for girls, and there is also the issue of girls wanting privacy to deal with menstruation.

School toilets;
www.gov.uk/government/uploads/system/uploads/attachment_data/file/410294/Advice_on_standards_for_school_premises.pdf

www.sec-ed.co.uk/best-practice/school-toilets-guidance-and-regulations/

www.plumbcenter.co.uk/wcsstore/PlumbCenter/Attachment/downloads/school-washroom-guidelines-v2.pdf

[Speedy85]

Is this the same school as the other thread (King Edmund Academy)? If so, my views are below. If not, then there is a different set of Regs which oblige the school to provide single sex bathrooms which might apply depending on the type of school (the ones below apply to academies), so some of the references would be wrong but the principles are the same. Sorry if the following is a bit long!

School's breach of obligations re: toilets
The school is breaching para 23 of the Schedule to the Education (Independent School Standards) Regulations 2014 by failing to provide separate toilets for boys and girls aged 8 or over (www.legislation.gov.uk/uksi/2014/3283/schedule/paragraph/23/made). The above is on my assumption that school is allowing the trans child to use ordinary cubicle toilets - if on the other hand the toilets in question are in a fully enclosed room with a single toilet those can be unisex without breaching the Regs.

Gender Recognition Act 2004
It is not possible to legally change your gender by obtaining a gender recognition certificate using the process in the Gender Recognition Act 2004 until you turn 18. Therefore, the child will be regarded in the eyes of the law as a boy who wishes to transition, rather than legally being a girl for the purposes of the Independent School Standards Regs mentioned above.

Equality Act 2010
Contrary to what I understand Transpire have said, the Equality Act 2010 does not require the school to allow a pupil to use the toilets which they feel comfortable with.

The Equality Act is a bit weird hard for people to get their head around at first but basically work by having a list of protected characteristics (sex, race, disability, gender reassignment), some different contexts (eg employment, services, education) and prohibited behaviours.

So the school will say that the trans child has the protected characteristic of gender reassignment on the basis that the child is proposing to go through a process to reassign there gender.

The relevant bit of the Equality Act is s85(2) www.legislation.gov.uk/ukpga/2010/15/section/85 which sets out that schools must not do the following in relation to someone with any protected characteristic (including gender reassignment). It says:
The responsible body of such a school must not discriminate against a pupil—
(a)in the way it provides education for the pupil;
(b)in the way it affords the pupil access to a benefit, facility or service;
(c)by not providing education for the pupil;
(d)by not affording the pupil access to a benefit, facility or service;
(e)by excluding the pupil from the school;
(f)by subjecting the pupil to any other detriment.

In the context of transgender pupils, this does not mean that the school is required to allow the pupil in question to use the facilities of their choice. What it means is that:

A) The school can allow the pupil to use a unisex bathroom if there is one. As above, this must be a self-contained bathroom in a room of its own. I know that in a lot of similar instances trans pupils are allowed to use the staff bathroom as these are often unisex self-contained bathrooms.

B) The school could still force the trans child to use the bathroom that corresponds to their sex if it is 'objectively justified'. The test for objective justification is whether the action is proportionate means of achieving a legitimate aim (ie in very basic terms, there's a good reason for the discrimination and the discrimination is kept to the minimum realistically possible). In this context, I think that there would be a legitimate aim of complying with the legal requirements of the Independent School Standards Regs mentioned above and maintaining the privacy/safety of female pupils. However, it would only be proportionate to do so if there were no unisex toilets on site (and arguably only for a limited period as the school could put in a single unisex toilet).

The Equality and Human Rights Commissions guidance is useful here as the school should be using this, rather that whatever guidance Transpire is putting out. www.equalityhumanrights.com/sites/default/files/technical_guidance_for_schools_england.pdf Whilst it doesn't cover toilets, it does give an example re: trans use of school changing rooms in the example box below para 3.20. The exact same principles apply to toilets.

If there is anything further that I can do at all to help in relation to this do let me know. I am very happy to help!

[abitofanangrybird]

Yes it is the school you have mentioned. These responses are incredibly helpful. Thank you very much. I have copies of all correspondence with the school to date if that is of interest to anyone with a genuine concern.

I will take a read through but if anyone would like to PM me please do. I live locally and am a little concerned about my privacy and anonymity but would appreciate the support of those who understand my concerns, particularly those who are further ahead with their research.

[abitofanangrybird]

Message for Speedy85 -

The school is breaching para 23 of the Schedule to the Education (Independent School Standards) Regulations 2014

Apologies if this is a silly question, but are these regulations applicable to King Edmunds School as it is an academy and not an Independent (fee-paying) school?

[Speedy85]

Apologies if this is a silly question, but are these regulations applicable to King Edmunds School as it is an academy and not an Independent (fee-paying) school?

I'll double check. I used to specialise in Equality law but I've never done education law. There is another similar set of Regs that will apply (with same provisions re toilets) if these ones don't, but let me check and I'll get back shortly.

[Elletorro]

Hi Speedy and angry bird

Would you pm me?

I’m looking into ways to challenge schools on this. My take is that the implementation of the policy is discriminatory against girls ( indirect sex discrimination)

I think we will be able to challenge this in the courts. Look at 8.10 of the Technical guidance on the Equality and Human Right Commission guidance in Speedy’s link above.

[Speedy85]

OK so my understanding from this guidance www.gov.uk/government/uploads/system/uploads/attachment_data/file/410294/Advice_on_standards_for_school_premises.pdf is that the Education (Independent School Standards) Regulations 2014 apply to academies - see the background section on page 4.

But if you're writing a letter then it might be helpful to say that your understanding is that those are the relevant Regs as the school is an academy, but if they are not then there are equivalent provisions in regulation 4(2) of the School Premises (England) Regulations 2012 which also provide for single sex bathrooms for children aged 8 or over.

I have also just gone on to Westlaw (legal database) and confirmed that the regulations mentioned in this post are still in force and they are.

Let me know if you need anything further. I miss working in this area of law!

[Speedy85]

Another point, whilst I'm brainstorming, and this will probably really freak them out because they probably haven't done it, is to ask the school for any evidence that they have complied with the Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010 when creating this new policy that trans children can use the bathroom of their choice.

The PSED is basically a duty on schools (and other public bodies/government etc) to assess the impact of their actions on people who have protected characteristics under the Equality Act.

There's some guidance on its application in schools here but you don't need to read it:
www.equalityhumanrights.com/sites/default/files/psed_guide_for_schools_in_england.pdf

Best practice would be for the school to have drawn up something called an Equality Impact Assessment which is normally a short 1-2 page report detailing how what they are doing will affect different groups before (not after) they changed things. They don't have to do one of these assessments, but if they don't they will struggle to prove that they have complied with their duty.

The PSED is process rather than outcome focussed. If the school can provide evidence that they did consider the impact on protected groups and knew it would be unfair but decided that they wanted to go ahead with the policy anyway, then there won't be a breach of this particular section of the Equality Act (although there might be a breach of other sections). The point of the PSED is just to force decision makers to think about the consequences of their decisions.

So I would ask them to please provide any evidence that they have complied with the Public Sector Equality Duty under s149 of the Equality Act 2010 before implementing this possibility, in particular any evidence that they considered how this will affect pupils with the protected characteristic of sex and religion.

[Speedy85]

Sorry that should have said 'characteristics of sex and religion.' It will impact on all girls and might particularly impact on girls who follow certain religions (although I will admit that I'm clueless on the different religions views on trans issues, but I imagine a lot are against it and it might means those girls feel particularly uncomfortable using shared loos).

This isn't Equality Act related and I imagine you're already doing this but if writing a letter that the school I would also ask what they are doing re: safeguarding etc.

[abitofanangrybird]

Thank you Elletorro and Speedy85. I have PM'd you both, I hope that's ok.

[MsBeaujangles]

As people point out above, the regulations require provision of same sex toilets (rules around independent schools apply to academies).
What is key here, is the quality of the equalities impact assessment they should have undertaken to explore the impact of this change in policy on people with other protected characteristics.
I suggest you write to them (via email) and ask them to provide you with information about the methodology they used when conducting the equalities impact assessment (specifically who they consulted with and how) and the findings from the impact assessment. So long as you provide your name and contact details (such as the email address to respond to) this counts as an FOI request and they should get back to you within 20 working days.
In light of the fact that you weren't consulted as part of the impact assessment (assuming there was one!), you could also ask them to address some of your questions/ concerns. These could include the following:
The moment a student with a male-sexed body enters the toilets designated for students with female-sexed bodies:

• The facility no longer affords the students with female-sexed bodies the privacy and dignity it is designed to afford (this is an issue of human rights). Do they agree with this?
  
• As the toilets no long remain single-sex, why don't they call them uni-sex toilets?
  
• In light of the facility being uni-sex, this creates sex based inequality because if male-bodied students retain the same sex toilet provision and the female-sexed bodied students don't (or vice versa). What is there response to this?
  

A proportionate response (as the law requires) would be very provide a 'gender neutral toilet' whilst others remain genuinely single-sex. What is there reasoning against this solution?

[MsBeaujangles]

whoops. Whilst writing my post (and entertaining my kids simultaneously), I realise lots of it overlaps with Elletorro and Speedy!

[SnibbleAgain]

Does the school have trans pupils or have this transpire organisation been going around schools getting them to put various policies in?

I think that their logic is inconsistent. IF they accept that a child who has said they are trans and is in whatever conversations with them they deem necessary to accept this, then it makes no sense to say yes they are the opposite sex for some things (toilets) and not for others (showers). So I don't beleive that even if they were planning on keeping certain facilities as single sex - as soon as they have said that they accept for e.g. that male child A is gender female, and can therefore use the girls toilets, they have no grounds to say that they cannot use the other girls facilities - this sounds more discriminatory and potentially more unpleasant for the child than a consistent approach. (Why the toilets but not the showers?).

The other point here is that as I understand it most trans children are girls (as opposed to adults who are men) - I imagine some transboys would not actually be keen to go in the changing rooms with the boys. And surely no-one would make them.

So really the whole thing is a minefield unless you stick with straightforward rules (single sex) or get unisex facilities / cubicles (which would mean many schools would end up not doing sport basically? - not enough space for cubicles / money to build them / and there'd be huge queues).

i find it really disturbing thay trans orgs are going into schools, giving them incorrect information about the law and persuading them to change their policies on that basis.

[MsBeaujangles]

sorry about my typos and 'their' and 'there' errors. Got a few plates spinning at the mo!

[MsBeaujangles]

I understand your points about 'logic' Snibble. However, schools have to make sure their response is proportionate.
I imagine it is easier to argue that the disadvantage experienced by the trans student is greater than that experienced by the girls in the case of toilets but not in changing rooms and showers (due to cubicles etc.)

However, I do think there is some mileage in thinking about same-sex toilets in binary terms- they either afford benefits or they don't.
Either our sexed bodies matter in this instance or they don't (cubicles or not). It makes no sense (legal or otherwise) to say that some male-sexed bodies count and others don't. Gender should be irrelevant if the issue related to sexed-bodies.

[SardineQueen]

I think that if they accept that children can use the things according to their "gender" rather than sex in some circs it makes it very difficult to argue that it cannot be applied in all circs.

All of this is moot anyway due to the EA points etc above - it bothers me that so many orgs are being targeted by TRAs, told lies about what the law says, and are then changing their policies on that basis.

[SardineQueen]

Sorry namechanged! That looks confusing