Supporting transgender pupils in schools: guidance for education authorities and schools – revised

Legislation

The Equality Act 2010

The 2010 Act^[87] provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It provides discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society^[88].

The Act covers discrimination based on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These categories are known in the Act as ‘protected characteristics’^[89][90].

The Act provides certain protections for those with a protected characteristic, this includes protections from discrimination, harassment and victimisation^[91]. Chapter 1 of the EHRC Technical Guidance for Schools in Scotland provides an overview of the schools provisions of the Act, including what may be lawful, unlawful and whether exceptions may be available^[92].

Equality Act exceptions:

Section 195 of the Act provides for single-sex and exceptions in relation to transgender persons for competitive sport, games or other competitive activity provided under Part 3 and Part 6 of the Act. Schools will require to carefully consider whether the activities they are planning would be considered competitive sport, games or other competitive activity. The EHRC’s Technical Guidance for Schools para 9.11 to 9.14^[93] sets out further information on the exception as it applies to schools.

The 2010 Act also contains an exception relating to communal accommodation^[94]. The EHRC’s Technical Guidance for Schools sets out that “‘Communal accommodation’ is residential accommodation that includes dormitories or other shared sleeping accommodation, which, for reasons of privacy, should be used only by persons of the same sex. It can also include residential accommodation that should be used only by persons of the same sex because of the nature of the sanitary facilities serving the accommodation.” The guidance also sets out the matters which a school would wish to take into account in relation to the exception.

Legitimate Aim

The EHRC’s Technical Guidance for Schools^[95] sets out that in the context of school education, examples of legitimate aims might include:

• ensuring that education, benefits, facilities and services are targeted at those who most need them;
• the fair exercise of powers;
• ensuring the health and safety of pupils and staff, provided that risks are clearly specified;
• maintaining academic and behaviour standards; and
• ensuring the wellbeing and dignity of pupils.

Further information about legitimate aim in the context of discrimination is available in the EHRC’s Technical Guidance for Schools in Scotland^[96]

What does guidance say about gender reassignment?

The EHRC Technical Guidance for Schools^[97] sets out that “Gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign a person’s sex. To be protected from gender reassignment discrimination, a person does not need to have undergone any medical treatment or surgery to change from their birth sex to their preferred gender. A person can be at any stage in the transition process, from proposing to reassign sex, undergoing a process of reassignment, or having completed it. It does not matter whether or not a person has applied for or obtained a Gender Recognition Certificate, which is the legal document that enables trans people aged 18 or over to have their acquired gender recognised as their legal sex. A child can have the protected characteristic of gender reassignment.”^[98].

Data Protection Law^[99]

There is also legislation on processing (including sharing) personal information related to young people.

The UK General Data Protection Regulation (UK GDPR) together with the Data Protection Act 2018^[100] provides the legal framework for the processing of personal data. They regulate the processing, including the collection, use and disclosure of personal data, and gives individuals certain rights in relation to their personal data. Children have rights in their own regard where they have sufficient maturity and understanding to do so, which they are presumed to do from age 12. This means that schools should ensure that transgender young people’s rights to processing of their personal data including, where relevant, consent should be met, and that their rights in relation to appropriate use of data within schools should be upheld.

The Education (Additional Support for Learning) (Scotland) Act 2004

This Act^[101] states that a child or young person has additional support needs 'where, for whatever reason, the child or young person is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child or young person'.

The legislation may apply to any young person experiencing bullying or discrimination. It also applies to children and young people experiencing poor mental health, where these matters cause a barrier to the child or young person’s mental health.

Children and Young People (Scotland) Act 2014

The Children and Young People (Scotland) Act 2014 places a duty on Scottish Ministers to keep under consideration whether there are any steps which they could take which may secure better or further effect in Scotland of the UNCRC requirements, and if appropriate, take those steps. Schools should be mindful of this and of the duty on local authorities to report on the steps taken to secure better or further effect within its areas of responsibility of the UNCRC requirements.

The Hate Crime and Public Order (Scotland) Act 2021

This Act provides a statutory aggravation for crimes where at the time of committing the offence, or immediately before or after doing so, the offender demonstrates malice and ill-will towards an individual based on their actual or perceived race, religion, sexual orientation, transgender identity, age, variations in sex characteristics, or disability. The statutory aggravations can also apply if it is proved that the offence was motivated by malice and ill-will towards persons who have those characteristics. .

If offences are proven to result from such malice or ill-will, the court must take this into account when determining a sentence. This can lead to a longer custodial sentence, higher fine or a different type of sentence.

The Act also creates specific offences concerning the stirring up of hatred against a group of people defined by reference to any of these characteristics.

For more information see: https://www.scotland.police.uk/advice-and-information/hate- crime/

The Age of Legal Capacity (Scotland) Act 1991

This Act states that a child of 12 and over is presumed to have sufficient capacity to instruct a solicitor, to sue on their own behalf and consent to their own medical treatment, and to enter into transactions usual for a child of that age. As is noted below, a young person cannot undertake the process of changing their sex on their birth certificate until they are 18 years of age^[102]. Further information on Puberty and Gender Identity Healthcare Services is also available below. These should be read together.

The Gender Recognition Act 2004 and legal recognition

The Gender Recognition Act created a process obtaining a gender recognition certificate, which enables a person to obtain an extract birth certificate reflecting their acquired gender.

If an individual is 18 years or older, has lived in a way that affirms their gender identity for at least two years, intends to continue living in the acquired gender, and has been diagnosed as having gender dysphoria, they can apply to receive a Gender Recognition Certificate (GRC). A GRC enables individuals to change the sex recorded on their UK birth certificate. An individual can receive a GRC without having undergone hormone treatment or surgery.

Puberty and Gender Identity Healthcare Services

Transgender young people may recognise and discuss their gender identity at any age. Before puberty, any transition or change is limited to socially changing their name, pronoun and gender expression. These aspects do not need medical or healthcare involvement.

The onset of puberty can often confirm feelings of 'gender dysphoria' when the body begins to change and develop in ways which are inconsistent with the young person's gender identity. This can be very distressing and transgender young people may develop negative ways of coping such as self-harming.

It is important to recognise that not all young people who identify as transgender seek medical assistance to transition, want medical treatment or need it. In Scotland, medical interventions for transgender young people^[103] (under 18) take place at the Young People's Gender Service (YPGS), based at Sandyford Services in Glasgow^[104]. Referral can be made before puberty, though the main focus of the service is on young people who are in early puberty and onwards.

In line with other clinical specialities, referral to the Service can only be made by a clinician, such as a GP or CAMHS.

There is a waiting list, so young people may wait some time before an appointment is offered with the clinic. This can be very difficult for some young people. The school, their families and outside agencies often have to support transgender young people at this time.

Following assessment, if the YPGS diagnoses a young person with 'gender dysphoria', it can offer ongoing support. For some young people this may also involve a variety of different medical interventions.

For more information about gender identity health services please refer to https://www.sandyford.org/sexual-health-services/what-are-our-services/gender-identity- service/