Original "gender recognition and minors"
- Gender recognition and minors
5.1 Legal gender recognition not possible for
minors
Under the GRA, the minimum age limit for GRC applications is 18. In
November 2018, the UK Government said it had no intention of
changing this position:
The issue of children is of concern outside the walls of this
Chamber. We have no intention of lowering the age at which
people may legally change their gender, namely the age of 18.
We recognise the increase in referrals of children and adolescents
to gender-identity services for people aged under 18, so we have
committed to improve our understanding of the impacts on
children and adolescents of changing their gender, and to gather
evidence on the issues faced by people who were born female
and who transition in adolescence. We are not the only country to
witness and experience the increase, and we need to understand
why it is happening.60
In June 2019, David Davies asked the Minister for Women and Equalities
whether people under the age of 18 can transition gender through
routes other than the GRA. Victoria Atkins replied:
The only method of legally changing gender is through the
process set out in the Gender Recognition Act 2004. This involves
applying for a Gender Recognition Certificate, which can then be
used to obtain a new birth certificate. This process is only open to
those aged 18 and over.
Medical transition is governed by the NHS, and surgery is not
available to those under the age of 18. Cross-sex hormones can
only be prescribed under strict clinical supervision from the age of
16.
Social transition, such as changing the name you are known by,
and the pronouns you use, can be done by anyone at any age,
and is often subject to a discussion between a child and their
parents if it happens before age 18.61
5.2 Provisions to support transgender
children in schools
Introduction
In England, Wales and Scotland, the Equality Act 2010 and the
associated Public Sector Equality Duty (PSED) prohibits discrimination
against transgender children in all schools, regardless of how the school
is funded or managed.62 The Equality Act 2010 does not apply in
Northern Ireland.
The UK Department for Education (DfE) defines the pupils protected
under the 2010 Act:
Gender reassignment is defined in the Equality Act as applying to
anyone who is undergoing, has undergone or is proposing to
undergo a process (or part of a process) of reassigning their sex by
changing physiological or other attributes. This definition means
that in order to be protected under the Act, a pupil will not
necessarily have to be undertaking a medical procedure to change
their sex but must be taking steps to live in the opposite gender,
or proposing to do so.63
Reports on transgender pupils’ experience of
education
The charity Stonewall, working with Cambridge University, published
their School report in 2017, which surveyed the experiences of
transgender children in British schools. Included amongst its findings for
2016/17 were:
• Nearly two thirds (64%) of surveyed transgender pupils reported
being bullied for being LGBT;
• One in three transgender pupils (33%) were not able to be known
by their preferred name at school;
• Around three in five (58%) were not allowed to use the toilets
they felt comfortable in;
• Around three in five (61%) transgender pupils reported speaking
to a member of staff at school about being transgender, and of
these, nearly three in four (73%) said “staff have asked them
what would make them feel comfortable at school and
accommodated their wishes”.64
The UK Government conducted a National LGBT survey in 2017. The
survey found that of the transgender respondents who were
transitioning while at school, 36% said their school was “very” or
“somewhat” supportive of their specific needs.65 An associated data
viewer has been published, allowing users to break down survey results
further.
Stonewall has also published survey reports of the experiences of
transgender children in schools as School report Cymru and School
report Scotland.
The Northern Ireland Department of Education published research as
Post-primary school experiences of 16-21 year old people who are LGBT
in 2017. The Northern Ireland Executive previously published Grasping
the nettle: The experiences of gender variant children and transgender
youth living in Northern Ireland (2013).
The Equality Act 2010 in schools (England)
The Equality Act 2010 applies to all schools in England, in both the state
and independent sector. Responsible bodies of a school, such as a local
authority or governing body, are liable for breaches of the Act. Which
body is responsible in any situation is dependent on how responsibilities
are organised. For example, a local authority may be responsible for
admissions as the admissions authority, whilst the governing body may
be responsible for issues regarding exclusions.66
The DfE’s The Equality Act 2010 and schools (May 2014) provides non-
statutory guidance for all schools in England. It sets out a general
requirement for schools to advance equality of opportunity between
those who have a protected characteristic and those who do not share
it. The guidance says the 2010 Act makes it unlawful for the responsible
body of a school to discriminate against, harass or victimise a pupil or
potential pupil:
• in relation to admissions,
• in the way it provides education for pupils,
• in the way it provides pupils access to any benefit, facility or
service, or
• by excluding a pupil or subjecting them to any other detriment.67
The Equality and Human Rights Commission (EHRC) has also published
Technical guidance for schools in England (2014) on the
Equality Act 2010. The EHRC told the Women and Equalities Committee
in 2015 that the Act:
Does not provide protection from harassment related to gender
reassignment for students in schools, unlike most other protected
characteristics; although such treatment by a school may amount
to direct discrimination.68
The DfE responded that “the lack of protection against harassment in
this regard is not significant, as the provisions on direct discrimination
provide adequate protection in a school setting”.69
Under the 2010 Act and the PSED, schools must annually publish details
on how they are complying with the PSED and at least every four years
update their equality objectives.70 In academies and maintained schools,
Ofsted have responsibility for ensuring schools fulfil their statutory
duties under the Act, assessing whether schools have effective
anti-bullying polices, and ensuring schools promote equality of
opportunity within an inclusive environment.71
The UK Government committed to publish an update to its guidance for
schools about how to apply the Equality Act 2010 in its 2018 LGBT
action plan.
72 The Government Equalities Office said in July 2019 that
the EHRC was also developing guidance for schools on supporting
transgender pupils.73 Elements of draft EHRC guidance were reported in
the press in September 2019.74
Guidance on specific policies (England)
The DfE has issued non-statutory guidance on Gender separation in
mixed schools (June 2018). The guidance intends to support all schools
in identifying what is expected of mixed schools where children are
separated by gender.
On the separation of pupils by any protected characteristic, the
guidance says schools must justify to Ofsted (if they are in the state
sector) and others the reasons for the separation, and:
Where a statutory exception is relied upon, they will be expected
to demonstrate that they have considered and documented why
the exception applies. Outside the specific statutory exceptions,
they should be in a position to demonstrate that separation does
not give rise to any detriment because its effect is negligible.75
Toilet facilities & changing rooms
As noted in the DfE blog, Gender identity in schools, it is “up to schools
to decide what facilities they provide, including whether to provide
unisex or gender neutral toilets”, as long as policies adhere to statutory
regulations and are inclusive.76
The DfE’s Advice on standards for school premises for both local
authority and academy schools and the School Premises Regulations
(England) 2012 state that separate toilet facilities for boys and girls aged
8 years or over must be provided, except where the toilet facility is
provided in a room that can be secured from the inside to ensure the
privacy of the occupant and is intended for use by one pupil at a time.77
The same advice says suitable changing accommodation and showers
must also be provided for pupils aged 11 years or over at the start of
the school year who receive physical education, although gender
considerations are not set out in this regulation.78
Sports
Section 195 of the Equality Act 2010 contains an exemption, which
allows for gender-separated sport. The section applies to participation in
a “gender-affected activity”. Referencing the Act, the DfE Guidance on
gender separation says that a “gender-affected activity” is:
A sport, game or other activity of a competitive nature in
circumstances where the physical strength, stamina or physique of
the average girl (or boy) would put her (or him) at a disadvantage
in competition with the average boy (or girl).79
The guidance says that events where pupils are separated by gender
should take account of the age and stage of development of the
children competing, stating that the exception in the 2010 Act is less
likely to apply to younger children:
The judgment on whether girls would be at a physical
disadvantage needs to take into account the particular group in
question, so it is much less likely to justify separation in relation to
sports for younger children. It is appropriate for schools to take
account of the age and stage of development of children who are
likely to be competitors in considering whether an activity is
gender-affected.80
School Uniforms
Schools are not required to have uniforms, or ones that differentiate
between genders (e.g. through the prescribed wearing of skirts or
trousers), though schools are “strongly encourage[d] to have a uniform”
by the DfE. The DfE’s non-statutory guidance on School uniform (2013)
says schools should consider their obligations to not discriminate
unlawfully or put “certain people at a particular disadvantage because
of their gender, race, sexual orientation, religion or belief or gender
reassignment”, by designing flexible policies “to allow for necessary
exceptions”.
81
Devolved Polices
Wales
In addition to the Equality Act 2010, the UN convention on the Rights of
the Child (UNCRC) was adopted into Welsh law in 2011. The Children’s
Commissioner for Wales has published A children’s rights approach for
education in Wales, which details equality and non-discrimination in
schools.
The Welsh’s Government Transgender Action Plan (2016) cited
Transgender guidance issued for Wrexham schools as good practice for
Welsh schools when designing policies to support transgender pupils.82
NASUWT Cymru have also published guidance on Trans equality in
schools and colleges (2017).
Scotland
The Equality Act 2010 is in force in Scotland, and the EHRC has
published Technical guidance for schools in Scotland (2014) on the Act.
In 2019, draft guidance from the EHRC on Scotland was reported in the
press, but no further guidance for schools has been published.83
The Children and Young People (Scotland) Act 2014 places a duty on
the Scottish Government to take account of the UNCRC and children's
rights. Local authorities should also take steps to improve understanding
and realisation of these rights.
LGBT Youth Scotland published Supporting transgender young people:
Guidance for schools in Scotland in 2017 (updated January 2020). This
was endorsed by 15 local authorities and is available on Education
Scotland’s National Improvement Hub website.84 The Children’s
Commissioner for Scotland said the document should have only been
suggested as guidance for schools following a Children’s Rights Impact
Assessment.85 The Scottish Government said in 2019 that it is
“supportive of the guidance”, but had not formally endorsed it,86 and in
June 2019 committed to publishing updated guidance following an
Equality Impact Assessment and Children’s Rights Assessment.87
Scottish Government Ministers accepted in full 33 recommendations
from their LGBTI Inclusive Education Implementation Group in 2018.
These recommendations included embedding LGBTI teaching across the
curriculum, including in subjects beyond Relationships, sexual health
and parenthood education.88 The Scottish Government said the
recommendations would be implemented by March 2021.89
NASUWT Scotland have published guidance as Trans Equality in Schools
and Colleges (2017).
Northern Ireland
The Northern Ireland Education Authority published Supporting
Transgender Young People in October 2019. The non-statutory
guidance applies to pre-schools, primary schools, post-primary and
special schools, and provides advice for schools on a range of issues,
including school sports, toilets and changing facilities, bullying and
school uniforms.
On legal protections for transgender pupils, the guidance says (emphasis
in original):
4.2 [...] Unlike Great Britain, there is no legal protection from
discrimination for transgender pupils in education. Guidance from
the Equality Commission for Northern Ireland outlines that
although schools in Northern Ireland have a responsibility not to
discriminate against pupils on the protected grounds of sex,
sexual orientation, race or disability ‘the law does not apply to
age, religious belief and political opinion and gender reassignment
in schools’.90
The Education Authority says the European Convention on Human
Rights may offer relevant protections in respect to the right to freedom
from discrimination and the right to family and private life.91
In 2016, the Equality Commission for Northern Ireland recommended
changes to the law to strengthen protections for transgender children in
schools.92 Currently, the Commission recommends schools adopt a
“good practice” approach that:
Extends beyond the mere letter of the law to include pupils who
are disadvantaged because they are transgender, or because of
their religious belief and political opinion.93
Further guidance from the Northern Ireland Equality Commission is
available on their page: Equality law for schools. The NASUWT Teaching
Union have published Trans Equality in Schools and Colleges (2017) in
Northern Ireland.