Robin Turnbull
- Partner
Robin Turnbull
Insights | Education
Navigating gender dynamics in Education
28 May 2024
The landscape of gender identity and its legal implications has undergone significant evolution in recent years, presenting complex challenges for both employers and service providers as they strive to create inclusive environments.
Nowhere is this more apparent than in the realm of education, where institutions must balance legal obligations with the diverse needs and perspectives of their students and staff. Providing accommodation, and being a place for academic debate, places them in a unique position.
Understanding recent legal developments
Since the enactment of the Gender Recognition Act in 2005, individuals have had the ability to change the sex recorded on their birth certificates. The Act makes no provision for the recognition of any other gender, such as gender fluid or non-binary.
The Equality Act provides that a person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing, or have 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. There is therefore no need to have a gender recognition certificate or any medical procedures to have the protected characteristic. A person who starts the gender reassignment process but then decides to stop still has the protected characteristic of gender reassignment.
Recent developments in some parts of society’s understanding of gender identity potentially involve a greater degree of flexibility than gender being defined on a birth certificate or a gender recognition certificate. Some may consider that the legal approach to defining gender might be out of step with current societal approaches to the meaning of gender. However, there are some who hold very different views.
Since 2021, gender critical beliefs, such as the view that sex is fixed and should not be conflated with gender identity, qualifies for protection under the Equality Act 2010. The belief doesn’t need to relate to a particular religion to be protected. In the case that made that position clear, the Claimant was ultimately awarded over £100,000 because of the organisation’s handling of the matter.
So a belief is capable of protection even if that belief may be considered profoundly offensive and even distressing by some. To gain protection, the belief requires to be worthy of respect in a democratic society and the recent case clarified that a belief would only fail on this ground in very limited circumstances e.g. advocating Nazism or encouraging violence.
However, the law is clear that this does not allow those with gender critical beliefs, for example, to misgender trans persons with impunity rather, they will continue to be subject to the prohibitions on discrimination and harassment under the Equality Act.
What does this mean in practice? Those who have such protected beliefs (whether gender critical or otherwise) may hold the belief, but they can’t do so in a way that harasses or discriminates against others. If they do so, they could be held liable as well as the organisation. Essentially, as all protected beliefs are equally protected, an employer and service provider must strike a fair balance between allowing freedom of speech and tolerating opposing beliefs and ensuring employees and service users have a safe environment that is free from discrimination and harassment.
A further development in Scots law relating to this area was brought into force on 1 April through the new Hate Crime Act. This Act creates a new criminal offence of stirring up hatred against people based on race, colour, nationality or ethnic or national origins. The impact of the Hate Crime Act on employers is discussed in this article.
Government guidance
Government guidance over recent years aims to support schools deal with these complex issues.
Scotland released non-prescriptive guidance in 2021 containing “real-life examples” of issues known to affect transgender students, including bullying, safety and privacy.
In England, last year the Department for Education published non-statutory draft guidance for schools and colleges on how best to support pupils questioning their gender in schools.
An independent review of gender identity services for children and young people carried out in England was published in April 2024. Following that, in Scotland, the NHS paused prescribing puberty blockers to children referred by its specialist gender clinic and new patients aged 16 or 17 would no longer receive other hormone treatments until they were 18.
As understanding evolves and there is continued development, it is imperative for educational institutions to remain responsive to the needs of their students and staff while upholding their duty of care.
Accommodation challenges
A key example of a nuanced challenge faced in this area is providing accommodation.
Whether the organisation is a school, university or college, they have various duties – at common law, under legislation and under their service contracts – and integral to that is to take relevant steps to ensure the correct balance of ensuring children’s safety and fostering safe and inclusive environments.
There is no absolute rule under the Equality Act to require a school to allow a transgender pupil to share a house or other accommodation with pupils of the opposite biological sex.
Under the Equality Act, a person remains their birth sex under the Equality Act until they obtain a Gender Recognition Certificate for their acquired gender (with some exceptions). However, gender reassignment is a protected characteristic regardless of whether an individual has a Gender Recognition Certificate – that gives protection from harassment and discrimination related to gender reassignment.
Therefore, not allowing a transgender pupil to share such accommodation might amount to unfavourable treatment and, in some circumstances, even harassment under the Equality Act. Still, there are various qualifications and exceptions which might make it open to an organisation to take this approach legally.
For instance, in terms of the legislation, for reasons of dignity and privacy, shared accommodation should generally only be used by persons of the same sex. The law is clear that a service provider will not discriminate against a person on the grounds of sex or gender reassignment if they restrict admission to communal accommodation where the accommodation is managed in a way that is as fair as possible to both males and females and is a proportionate means of achieving a legitimate aim. (This applies whether the pupil has a Gender Recognition Certificate or not.)
The Equality and Human Rights Commission (EHRC) Services Code suggests the following examples of legitimate aims:
- Ensuring the health and safety of those using the service provider’s service or others, provided risks are clearly specified;
- Ensuring the wellbeing and dignity of those using the service. (Paragraph 5.30, EHRC Services Code.)
Depending on the situation, risks may increase when males and females are placed in the same environment. That may be all the more likely to be the case in places where people change and sleep etc and are of a particular age.
Risk assessments have to be done by any organisation with a duty of care to the individuals. In the context of a boarding school, for example, a risk assessment is paramount, and it may be that an independent suitably qualified expert assessment of the risk would be appropriate to consider the risk that a particular transgender child would pose as compared with, for example, a male who is living as a male.
A school’s obligations towards transgender pupils neither require or permit the school to allow a pupil in the dorm against the pupil or their parent’s wishes without properly risk assessing the situation from the perspectives of all children involved. A school is required to balance its obligations towards all children. An appropriately qualified person might be able to conclude that the risks in a particular situation can be acceptably managed in other ways. But a school should consider properly assessing the extent to which the pupil’s transgender status reduces any of the usually accepted risks, whether to the transgender pupil or to others.
The pupils potentially face various risks, including in terms of dignity and privacy. Those involved may also hold protected beliefs. There may be a duty to make reasonable adjustments where pupils have a disability, for example, from a mental health condition. All these risks ought to be assessed – that is the case even if a different approach has been agreed within an independent school’s contract with the parents or the practice taken previously by the school, or that no incidents have been reported previously.
Key considerations and solutions
An adequate risk assessment is not the only key consideration. An understanding of the community and robust information systems to record and report incidents, concerns and complaints, will support the organisation to address these issues sensitively and effectively in practice.
A carefully developed and comprehensive training programme for staff should be an integral part of any organisation’s approach to equality, inclusion and diversity, and safeguarding.
Whether an approach can be legally justified will always be context-specific. But regardless of what the legal position is, there are reputational and practical considerations for the organisation.
If this has affected your organisation, or if you would benefit from employment and equality law advice of any kind, get in touch with Robin Turnbull or your regular Anderson Strathern contact.
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