The matter of transgender rights in schools is a tricky maze to navigate, and Attorney General Suella Braverman’s recent comments that schools should not “pander to transgender pupils” have stoked this already controversial area. But what does the law actually say?
Broadly speaking, the law around transgender rights can be found in the Equality Act 2010, the Human Rights Act 1998 and the Gender Recognition Act 2004. The Equality and Human Rights Commission has also issued some non-statutory guidance (not specifically aimed at schools), but received some backlash from organisations such as Stonewall.
Unfortunately, as yet there is no specific guidance from the Department for Education, though it is apparently forthcoming.
Regardless, Braverman’s comments take a simplistic view of the legislation and the obligations schools have towards transgender pupils. She says that, because under-18s cannot get a gender recognition certificate or legally change sex, the matter is clear. “A male child who says in a school that they are a trans girl […] is legally still a boy or a male. And […] schools have a right to treat them as such under the law.” Schools, she argues, don’t have to accommodate a change of name, pronoun or uniform.
But school leaders, lawyers advising them and staff at the chalkface of dealing with these issues know the legal position is actually far from simple.
Crucially, it is important to note that sex and gender have distinct meanings. The UK government actually defines sex as referring to the biological aspects of an individual as determined by their anatomy, which is produced by their chromosomes, hormones and their interactions and as generally male or female assigned at birth.
Gender, on the other hand, is defined as a social construction relating to behaviours and attributes based on labels of masculinity and femininity. Also, individuals may identify anywhere on a spectrum between these poles.
A pupil is considered transgender if their gender identity or expression differs in some way from the sex assigned at birth. Under the Equality Act, gender reassignment is defined as an individual who is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.
This means that a pupil who indicates that they intend to change their sex is protected. They do not need to have undergone any medical procedure to change their sex or to have a gender recognition certificate (the effect of which is to legally change their sex to that of the gender that they are acquiring). They only need to be taking some practical steps to live in the opposite gender or proposing to do so.
What Braverman fails to appreciate is that a pupil can legally be one sex, but wish to present as another, and still be protected under the Equality Act. Accordingly, once a pupil indicates that they are transgender, a host of legal obligations apply to schools.
Chief among them is that schools should not discriminate against pupils who are transgender – whether that discrimination is direct or indirect, and should be mindful that other protected characteristics may also potentially come into play. In short, pupils should not be treated less favourably or experience a detriment as a result of being transgender.
However, schools may also have to grapple with a ‘clash of rights’ situation, where the rights of a transgender pupil are pitched against an individual’s personal beliefs that sex is immutable. High-profile examples are JK Rowling and Maya Forstater, the latter having recently won an appeal at the employment appeal tribunal that her views on gender constitute a protected philosophical belief under the Equality Act.
Schools with teachers (or pupils) who hold this belief will have to pitch this against a transgender pupil’s right to be known as his or her chosen sex.
So it is far from straightforward, but one thing is for sure: schools that take the attorney general’s advice and take a “firmer line on gender dysphoria” do so at their peril.