Legal rights of gender dysphoric yr 8 boy to be placed in a girls dorm

[PrawnQuaver]

Please could anyone help me understand the legal rights involved in the situation of a private school placing a gender dysphoric year 8 boy, who is currently identifying as female, into a girls dorm on school residential trip without consulting the parents of the three other girls in that dorm or asking the girls themselves?
The 10 protected characteristics of the 2010 Gender Equality Act have been quoted as cast iron justification but I don't know enough about it to provide a strong counter argument.

I've name changed for this post but am a long time mumsnetter

This makes me so cross.

I believe the Eq Act PC of gender reassignment simply means this child has a right not be discriminated against because of his GR. ie that he should be treated as any other boy would be. There’s a thread on here about it, I will try to find.

What they are saying is definitely wrong and you there will be along to give you more back up.

Try asking them how they will explain if a pregnancy or ‘just’ sexual assault occurs because of this scenario.

Here you go:

www.mumsnet.com/Talk/womens_rights/4251618-the-comparator-for-protected-characteristic-of-gender-reassignment

fairplayforwomen.com/equality-act-2010_womens-rights/

This should be helpful.

The 10 protected characteristics of the 2010 Gender Equality Act have been quoted as cast iron justification but I don't know enough about it to provide a strong counter argument.

Off the top of my head (IANAL):

It is legal to separate males for privacy and other reasons, so it is sex discrimination, but it's permitted.

It's not legal to discriminate on grounds of "gender reassignment", but this boy is being treated the same as a boy without gender reassignment, so there's no discrimination there. The comparator is someone of the same sex - the "gender reassignment" does not flip that at all, in the absence of a GRC. (The GRC complicates things a bit, as I understand it, due to a legal sex flip. Even so, it's still permissible for things to be restricted to female-only, or sex-separated, even with GRCs in play).

Not sure where to point you for a more detailed breakdown. Maybe there's something at murrayblackburnmackenzie.org/ ?

I think it is unlikely that this boy has had gender reassignment. If he hasn’t, the EA does not apply to him in the first place as I understand it.

I think they have taken bad advice.

Children cannot have the PC of gender reassignment as you have to have undergone, be undergoing or be proposing to undergo 'gender reassignment'.

You have to be 18 and over to apply for a GRC. The school are basing their decisions on self ID which doesn't exist in English law.

(Though I understand that 'proposing to undergo' sounds like Self ID, it's a crap law, I don't think children have this PC, though they do have the PC of age, sex, disability and also sexual orientation).

Leaf is right, he can be treated like any other year 8 boy and if they were older the single sex exemption can apply as it is proportionate to exclude one boy in order to have all the girls have their dignity maintained.

"Gender reassignment" in the act covers "intention to", which can and has been stretched to any sort of social transition.

Obviously during debates on this stuff, parliamentarians thought they were talking about actual surgery or plans for surgery, but things got elastic.

Children cannot have the PC of gender reassignment as you have to have undergone, be undergoing or be proposing to undergo 'gender reassignment'.

Not so sure, but either way, doesn't matter. He's being treated like any other boy. There's no gender reassignment-based discrimination.

The EA2010 does not offer a sex change, or self-ID. A man (or boy) cannot be discriminated against for saying he's planning to be a woman in some way. You have to treat him like any other man (or boy).

Once he has a GRC, things get a bit more complex, because that does give a "legal sex change". But that's the GRA2004.

EA2010 on its own with no GRC is totally clear cut.

Safe Schools Alliance might be able to help. They have a factsheet about toilets and changing rooms with references to the relevant parts of the Equality Act and other legislation, some of which also applies to boarding accommodation. You can contact them via their website.

safeschoolsallianceuk.net/resources-2/factsheets/#Single_Sex_Toilets_and_Changing_Facilities_factsheet

Many thanks for your replies - there's enough there to keep me busy all day making sure I get my head round it. I'm new to all of this terminology and feel like I'm wading through mud.

Could I ask you what you would say to the school as the mother of one of those girls who had to share with a boy (who wants to be a girl) in the dorm without being asked?

I feel the boy's rights have been put over and above the daughter's rights to sleep in a safe single sex space (age 12, far away from home, no parents on hand) but I know they are going to start quoting all the legal stuff and it will get heated and emotional and it will be hard to stay cool and quote their misinterpretation of the law back at them (especially if I don't manage to get to grips with it today!)

I can't actually believe this has been allowed to happen!
I'm after some good, impactful soundbites.

I don't know about the legalities, but Y8 is age 12-13 and a lot of the girls will have started their periods and are well into puberty. Aside from their privacy/dignity, that's a potential for pregnancy...

Cross posted. As the mother of a Y8 girl, I would be kicking up a hell of a fuss. We don't have single sex dorms based on feelings ffs.

If I knew in advance, I would not have allowed it and would probably have withdrawn my daughter from the trip.

@OhHolyJesus

Children cannot have the PC of gender reassignment as you have to have undergone, be undergoing or be proposing to undergo 'gender reassignment'.

You have to be 18 and over to apply for a GRC. The school are basing their decisions on self ID which doesn't exist in English law.

(Though I understand that 'proposing to undergo' sounds like Self ID, it's a crap law, I don't think children have this PC, though they do have the PC of age, sex, disability and also sexual orientation).

Leaf is right, he can be treated like any other year 8 boy and if they were older the single sex exemption can apply as it is proportionate to exclude one boy in order to have all the girls have their dignity maintained.

I completely understand where you're coming from OhHoly. However I think on the face of it a child can have the PC of GR. The unavailability of a GRC to a minor under 18 is irrelevant to the PC of GR.

I agree that the law is crap, but yes it does permit "self-id" as a "transexual" (which is the word used in the Equality Act). That's different from the proposed "self-id"changes to the Gender Recognition Act which would have permitted self-id as the opposite sex.

So in response to the OP's issue, the school must not discriminate against the trans child either because they are trans, or because they are male. I do not think expecting a trans child to use facilities of their sex is necessarily discriminatory against them on the basis of their PC of GR. Some lawyers would disagree with me. Separating facilities by sex is prima facie sex discrimination but the school may rely on the exceptions set out in the Equality Act, which include permitting single sex sleeping arrangements.

The really complicated bit is whether or not there is unlawful discrimination against the girls in this scenario. I think there may be (boys get single sex sleeping accommodation, girls don't) but this has to my knowledge never been tested in court. The school also has to comply with the public sector equality duty (EA section 149) which requires them not just to prevent unlawful discrimination, but also to have "due regard" to the need to promote equality of opportunity and relations between people with different characteristics. It would be interesting to ask the school whether they have discharged this duty

I don’t know much about the legal side of this scenario but I am surprised that the parents of the girls aren’t kicking up a huge stink. I’d be bloody livid.

The 10 protected characteristics of the 2010 Gender Equality Act have been quoted as cast iron justification but I don't know enough about it to provide a strong counter argument.

The Equality Act 2010 has 9 protected characteristics, of which 2 (age and marriage/civil partnership) do not apply to children in schools. So they are already clearly wrong.

One of the protected characteristics is SEX. Single SEX spaces are provided where necessary to protect safety, privacy and dignity. Why do the school think it is OK to discriminate against these girls?

Some girls will also be covered by the protected characteristic of religion too. By failing to provide single sex dormatories some girls will also be discriminated against on the basis of religion of belief as well as sex.

The really complicated bit is whether or not there is unlawful discrimination against the girls in this scenario. I think there may be (boys get single sex sleeping accommodation, girls don't) but this has to my knowledge never been tested in court.

There is also potential discrimination against boys. You can only exclude boys to provide single-sex accommodation. If you're letting some boys in, then by doing so you've undermined your logic that it's necessary to keep boys out.

Permitting one boy shows you can permit other boys. The exemption in the EA2010 no longer protects you from being accused of sexual discrimination by the excluded boys.

PrawnQuaver have you spoken to the parents of the other girls who had to share a dorm with this boy? Are they aware of what has happened?

It might be good to contact Safe Schools Alliance for advice.

@NecessaryScene

The really complicated bit is whether or not there is unlawful discrimination against the girls in this scenario. I think there may be (boys get single sex sleeping accommodation, girls don't) but this has to my knowledge never been tested in court.

There is also potential discrimination against boys. You can only exclude boys to provide single-sex accommodation. If you're letting some boys in, then by doing so you've undermined your logic that it's necessary to keep boys out.

Permitting one boy shows you can permit other boys. The exemption in the EA2010 no longer protects you from being accused of sexual discrimination by the excluded boys.

Yes. This.

This guide is a collaboration between Sex Matters and Transgender Trend, designed for parents and schools. You can download it from the link:

Boys and Girls and the Equality Act

This situation is horrifying. Girls have a right to privacy and security and letting a boy in violates that.

If they go down the route of claiming that there could never be an issue, ask them what they are doing to protect him from allegations, then?

When performing intimate examinations on female patients, male healthcare staff ask for a chaperone for their own protection, as well as the female patient's comfort, in case of a genuine misunderstanding leading to an official complaint or a female patient making a malicious allegation later.

I am surprised that no-one wishes to safeguard teenage children against such eventualities. If either is a risk for healthcare staff from adult patients who have deliberately sought medical treatment, surely each is a much higher risk in the tempestuous social environment of a secondary school?

Male children who feel unable to share with other boys should be given private space of their own for changing and sleeping, as a matter of routine. Not just shunted into the girls' spaces.

I would definitely get in touch with Safe Schools Alliance, and they should be able to give you a clear explanation of the law and how best to raise it with the school. They may also be able to recommend a lawyer who could write a letter for you. Lawyers' letters do tend to focus the mind a bit.

When the school incorrectly stated there were 10 protected characteristics, did they list them? I wonder if whoever gave them their training might have added 'gender' or 'gender identity'? These are not protected characteristics. The protected characteristics for children in school are:
Sex (male or female)
Disability
Gender reassignment
Pregnancy and Maternity
Race
Religion of belief
Sexual orientation

Unfortunately, Purgatory, the "all trans people are brave, stunning and angelic" and "this never happens" narratives have gone a long way in befuddling minds - people genuinely believe that nothing untoward will happen, and I think they genuinely believe that a trans girl won't behave like any other horny teenager in possession of a penis.