VWV's Tracey Eldridge-Hinmers looks at the issues of protection within gender reassignment in schools
Posted by Hannah Oakman | November 04, 2016 | Law, finance, HR
Protection from discrimination because of gender reassignment in schools was introduced for pupils in the Equality Act 2010 (the Act). This means that it is unlawful for schools to treat pupils less favourably because of their gender reassignment. Increasingly schools are required to factor in gender reassignment when considering their Equality Act duties and obligations.
‘Gender reassignment’ is defined in the 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 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, eg wearing clothes associated with the opposite sex and adopting easily identifiable appearance traits.
The main areas which affect schools are in relation to the school’s uniform policy and the provision of changing and toileting facilities.
Schools should consider whether some measure of flexibility is needed in relation to the school’s uniform policy to meet the needs of any pupil who is undergoing gender reassignment, in order, particularly in single sex schools, to enable them to dress appropriately for their chosen acquired gender or to give them a ‘gender neutral’ option.
Changing rooms and toilet facilities
The way in which school facilities are provided can lead to unlawful discrimination. If a school fails to provide appropriate changing facilities for a transgender pupil it could amount to unlawful indirect gender reassignment discrimination, unless it can be objectively justified. Many co-educational schools are now being encouraged to provide gender-neutral facilities. However, this is not something that should be limited to co-educational schools as single-sex schools may find that providing gender neutral facilities overcomes the problem for transgender pupils more easily than gender specific facilities would be able to do.
Transgender pupils are often advised to use the ‘accessible’ facilities rather than those of their true gender. Schools will need to consider whether these facilities should be renamed using terms such as ‘unisex accessible toilets’; ‘larger toilet’; ‘toilet and changing facilities’ in order to reduce what is often perceived as the stigma of using facilities commonly identified as ‘disabled toilets’. This will help ensure that schools respect the dignity and privacy of both transgender pupils and those with disabilities.
Names and personal data
For schools, there are always concerns about changing names and gender identity on school systems and for public examination entrance and certificates.
Changing their name and gender identity is a pivotal point for many transgender people. If a pupil wishes to have their personal data recognised on school systems, this needs to be supported and will necessarily feed on to letters home, report cycles, bus pass information etc. Therefore it is advised that the change of name and associated gender identity should be respected and accommodated in the school. It remains open for the school to amend the gender of any pupil, within their own management information systems, at any time.
Changing name is a real indicator that a transgender pupil is taking steps to, or proposing to move towards a gender they feel they wish to live in. It is possible to change a name on a school roll or register for a preferred name and when sending details of young people to exam boards. Pupils can be entered under any name with an exam board. However, once a result is accredited it will need to be linked with a unique pupil number (UPN) or unique learner number (ULN) which existed in the school census information submitted in January of the exam year. UPNs and ULNs are only linked with legal names, usually the name on the pupil’s birth certificate with which they first entered the education system, not preferred names. It is possible for exam certificates to be issued in the preferred name.
Schools are encouraged to ensure a strategy is agreed with the pupil and their parents or carers, then agreed with the various exam boards prior to starting the process to accredited courses as some exams may be sat earlier than Year 11, and the length of time the process of re-registering may take has to be considered. Exam boards have vast experience of gender identity issues so they may be able to guide the school through the process.
It is possible for most documents to be changed to reflect the chosen name or gender identity of the young person. Changing details on a birth certificate is not possible until a gender recognition certificate has been issued. In order to change a name on other official documents such as a passport, it might be necessary for evidence of change of name to be produced: there are two main ways in which this can be done: by deed poll and by statutory declaration. However, a person under 16 years of age cannot change their name legally without the consent of a parent and simply changing name does not legally change gender identity.
Tracey Eldridge-Hinmers is a senior associate at leading education law firm Veale Wasbrough Vizards. Tracey can be contacted on 020 7665 0802 or at firstname.lastname@example.org
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