Transgender guidance in the press

7 January 2020

Oxfordshire County Council (OCC) has recently issued guidance to schools and colleges on how to cater for transgender pupils in school. The controversial guidance attempts to directly address some of the complex issues and states that schools should allow male pupils who identify as female to share changing rooms, toilets and dorm rooms on residential trips without parents' knowledge or permission. It also goes on to state that the same pupils should be allowed to compete with and against female pupils in sports.

As at 20 December 2019, a crowdfunding page had raised approximately £7,500 to fund a judicial review claim against OCC if they refuse to "publicly withdraw" the guidance by 3 January 2020.

Definitions on the topic of transgender pupils are highly controversial in themselves and this is largely due to the fact that the definitions of "sex" and "gender" do not match. "Sex" is taken to mean whether an individual is male or female at birth, whereas "gender" is often used to describe social and cultural roles, an individual's sense of self or gender identity.

There is a focus around how discrimination law is applied in cases involving transgender pupils. The Equality Act 2010 confirms that discrimination is only unlawful if it relates to or is done because of one of the "protected characteristics", such as sex or gender reassignment. This is where application of the law is complex and will depend on whether language such as "sex" is interpreted as being a biological definition or not.

A person's sex is determined (in the UK) by what is recorded on an individual's birth certificate, unless there is a gender recognition certificate in place. The latter is unlikely to be the case in schools because an individual can only apply for a gender recognition certificate if they are aged 18 or over.

So turning to the definition of "gender reassignment", this protected characteristic applies to a person who is proposing to undergo, is undergoing or has undergone a process for the purpose of "reassigning the person's sex by changing physiological or other attributes of sex".

It is important for schools to note that pupils may still have the protection of this legislation even if they have not received any surgical or medical treatment and it is sufficient for the pupil to have simply proposed to undergo the process mentioned above (or part of a process) for the purposes of reassigning their sex. If you are unsure, it is advisable to assume that they are protected by the Equality Act and then seek further advice or guidance from relevant experts to confirm the position as well as the support that will need to be put in place for them in school.

Schools should be aware of issues that are likely to require careful consideration, from admission of a pupil (particularly to a single sex school) through to changing a name on the register or exam certificates, uniform, exclusions and use of facilities.

For further information or to discuss a potential issue or requirement, please contact Vicky Wilson or your usual Wilsons contact.

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