How can you ensure young people can express their gender identity in school without experiencing discrimination or being made to feel uncomfortable? And how do these concerns intersect with legal and safeguarding requirements? Teacher Debbie Hayton explains all in this guide
There are more children in our schools seeking support for difficulties in the development of their gender identity than ever before. In 2009-10, just 97 children were referred to the Gender Identity Development Service (GIDS), based at the Tavistock and Portman NHS Foundation Trust, which is the only public service of its kind in Great Britain. Referrals have increased every year since, with the number for 2017-18 rising to 2,519, a 25 per cent increase compared with the previous year.
While the majority of these children are of secondary age, in 2017-18, 246 were of primary age and approximately 13 of Reception age.
The figures for 2018-19 are imminent, and are expected to rise again.
Clearly, this is something every school, and every teacher, needs to consider. These young people are becoming more visible, and more teachers are being – and will be – asked for support and information. Teachers need to be upskilled and all pupils need to be given the right information to properly understand and support their peers.
However, doing this is becoming increasingly difficult. Schools are responsible for keeping transgender children safe and providing an environment within which they can flourish alongside their classmates. Unfortunately, upholding this duty of care is made more difficult by a wider political debate over transgender rights, which has become even more toxic than Brexit.
In these debates, it is easy to overlook the human impact. But every data point refers to a real child: a young person struggling with the expectations that society places on them because of their sex. So how can we best support these young people?
While I have first-hand experience to draw from – I transitioned in 2012 after struggling with gender dysphoria since my childhood – many teachers and school leaders will be on unfamiliar ground when one of their pupils announces that they are transgender.
Even when people have some knowledge – perhaps through friends and family members who have transitioned – schools still need to know the law and be aware of potential issues so that their policies and procedures are both compliant and workable.
There is guidance out there, but cutting through the noise and finding out what is true, what is accurate and what is helpful can be tricky.
So here is a research-backed guide for every school and every teacher.
What’s out there?
Search the internet for “schools transgender guidance” and you will find a plethora of colourful multipage PDFs, ready to be downloaded and printed. Unfortunately, there is much disagreement and conflicting advice within them.
How should a headteacher proceed when different guides offer contradictory advice? Certainly with caution, for a key dilemma lies behind the words, graphics and case studies: how can schools affirm trans-identified children while maintaining sex-based protections and safeguarding all pupils?
What are the key differences between existing guides?
The contrast between different guides is remarkable. For example, while the oft-cited Trans Toolkit for Schools (1) favours being affirmative, its “rival” Supporting Gender Diverse and Trans-Identified Students in Schools (2) prioritises safeguarding.
Meanwhile, the two largest teaching unions have both produced guidance for schools and colleges. The NEU’s advice is focused on how to support trans and gender-questioning students (3), while the NASUWT has issued a more comprehensive document covering transgender staff as well as children (4).
The NASUWT has also discussed how to support children whose parent or other family member transitions. Families can easily be overlooked.
To put the differing approaches in perspective, we need to go back to 2012 and the pioneering work conducted by Cornwall Council, the Intercom Trust and Devon and Cornwall Police. Commonly known as “the Cornwall Guidance”, Schools Transgender Guidance (5) set out the structure for the guides that followed. It covered the background, defined terminology, explained the legal and medical issues, and advised on policy and practice – for example, name changes, school uniform and how to address transphobia and bullying.
Crucially, the authors were cautious around the difficult issues: toilets, changing rooms, PE and residential visits. They suggested that transgender pupils could be offered separate unisex facilities, while stating that thorough risk assessments should be made for PE and sport, and trips and visits, taking into account the specific circumstances of the pupils.
The Cornwall Guidance was promoted by both the Department for Education and GIDS, and it gained a national reputation. Some authorities – for example, the Torbay Safeguarding Children Board (6) – simply rebranded it under their own names, while others relied heavily on it when developing their own guidance.
However, as this guidance gained prominence, attitudes were changing rapidly. By 2014, Lancashire County Council had changed its advice regarding toilets, stating that “trans children and young people should be able to use the facilities of their preferred gender” (7). This year also marked the first edition of Trans Inclusion Schools Toolkit, which has since been updated (8). This affirmative guide was written by Allsorts Youth Project and Brighton and Hove City Council.
“The Allsorts guide” – as it is sometimes known – has been promoted nationally by advocacy groups such as Mermaids UK and the Proud Trust, and also by GIDS. It abandoned the caution of the Cornwall Guidance, stating that “there are no provisions in child protection and safeguarding legislation specific to trans children and young people aside from what is in place to keep all pupils and students safe”.
Regarding toilets, the advice was unambiguously affirming: “There is nothing to prohibit trans children and young people using the changing rooms or toilets which reflect their gender identity.”
The Allsorts guide has been rebranded and reissued by other authorities – for example, East Sussex (9) – and it served as key source material for the Trans Toolkit for Schools mentioned above, which is commonly referred to as “the Trans Toolkit”.
This was developed by the Leicester LGBT Centre in collaboration with 12 local authorities, including Birmingham, Leicester, Sheffield and Warwickshire. The Trans Toolkit was similar in approach to the Allsorts guide.
While acknowledging the practical implications of applying the Equality Act 2010 to all pupils, it was uncompromisingly affirmative, stating that the ideal approach should be: “use the toilet you want to use”. And, for residential trips: “pupils should be able to sleep where they feel most comfortable”.
When it discussed breast-binding, the concern was the cost of binders, not the damage they might cause.
Meanwhile, north of the border, Supporting Transgender Young People: guidance for schools in Scotland was broadly similar (10). These guides were all based on the principle of affirmation of transgender identities. Gone was the guarded line taken by the Cornwall Guidance. Gender identity took priority over biological sex.
What are the key discussion points?
The difficulty here is that school leaders also need to consider the other children in the school. For example, girls who are uncomfortable sharing facilities with a child who might identify as a girl but remains physically and legally male.
Toilets are only one example, but they are covered by specific legislation.
Under section 4 of the School Premises (England) Regulations 2012 (11) and part 5 of the Independent School Standards Regulations 2014 (12), schools are compelled to provide separate toilet facilities for boys and girls aged 8 years or over, except where the toilet facility is in a room that can be secured from the inside and is intended for use by one pupil at a time.
Given that practicalities may prevent schools from offering individual toilets, there is a tension between the legal requirements and advice from the Trans Toolkit, which states: “A young person should be able to use the facilities that they have chosen and feel comfortable using.”
PE and sports are another thorny issue. While some disciplines are conducive to mixed-sex groups, there are others where it could be dangerous, as well as unfair, to allow trans girls – who retain their male physique – to compete with girls.
While the Allsorts guide and the Trans Toolkit do acknowledge a school’s duty to ensure that all pupils feel safe and included – such as the section in the former that states “PE teachers will take into account the range of size, build and ability of individuals in the class and differentiate accordingly” – some recommendations appear to specify doing something different.
For example, the Allsorts guide advises: “Trans and gender-questioning pupils and students should be permitted to participate in competitions and sports days in a manner consistent with their gender identity if they wish to do so.
“It is unlikely that [in] pre-puberty there would be any issues with a trans child competing and representing the school. In the case of competitive secondary school sports, schools may need to seek advice from the relevant sporting body.”
However, it is school leaders who would be responsible if girls were harmed during an activity, or dispirited because they could not compete against members of the opposite sex who retained an advantage.
Both guides could go further and be clearer in addressing these as safeguarding issues and the concerns of girls who would be expected to budge up and make room.
In response to all the above, an alternative approach was suggested by Transgender Trend, an advocacy group that worked in partnership with teachers, lawyers and child welfare staff to produce the aforementioned Supporting Gender Diverse and Trans-Identified Students in Schools.
The Transgender Trend guide started from a safeguarding perspective and considered the needs of all pupils in the school. Regarding toilets, for example, it emphasised the importance of “menstruation as a factor in girls’ need for private toilet facilities, rather than a ‘gender neutral’ layout where members of the opposite sex may observe the length of time a girl spends in the toilet or overhear a girl unwrapping sanitary products which may cause her embarrassment or humiliation. Girls may also need private facilities to clean up.”
Let’s be clear: all these guides aim to support those children who identify as transgender. Their method of how that should be done is just different.
How should leaders differentiate between the existing guides?
What is taught and the policies that are adopted must both comply with the law.
In my view, it is the Transgender Trend guide that is most consistent with the Technical Guidance for Schools in England (13) issued by the Equality and Human Rights Commission (EHRC) when it considered the needs of trans girls.
The EHRC guidance states that when “a school fails to provide appropriate changing facilities for a transsexual pupil and insists that the pupil uses the boys’ changing room even though she is now living as a girl, [this] could be indirect gender reassignment discrimination unless it can be objectively justified”.
Rather than direct the child to the girls’ changing room, the EHRC goes on to suggest: “A suitable alternative might be to allow the pupil to use private changing facilities, such as the staff changing room or another suitable space.”
Meanwhile, the nature of the advice in the Trans Toolkit has begun to alarm some of the 12 contributing local authorities. It was reported last month that, after complaints from parents, Oxfordshire had agreed to review the guidance while Warwickshire had suspended its use.
In short, school leaders who wish to be fully informed and stay within the law and best practice may wish to consider the Transgender Trend guide when formulating local policy.
What does the law actually say?
- Crucially, children are covered by the Equality Act 2010. The Equality Act protects everyone against discrimination and harassment under nine protected characteristics, including gender reassignment, which applies to individuals undergoing or intending to undergo gender reassignment, regardless of whether they are receiving medical treatment.
- The Equality Act also protects against discrimination by perception – so, for example, a transgender pupil will be protected against less favourable treatment even if they are incorrectly perceived to be homosexual.
- There is no definitive point at which a pupil will become a transgender person. However, where a pupil expresses a preference or asks to be referred to by another name, this is usually considered a trigger point for their school to provide support for them as part of its duties under the Equality Act.
- The Gender Recognition Act 2004 allows individuals aged 18 years and above whose birth was registered in the UK to apply for a Gender Recognition Certificate in order to change the sex marker on their birth certificate and hence their legal sex. The Gender Recognition Act does not therefore apply to pupils under the age of 18 years.
- The government carried out a public consultation on the Gender Recognition Act last year, but has already announced that it has no plans to lower the minimum age from 18 years.
- Children are protected by the Human Rights Act 1988 and their personal data is covered by the General Data Protection Regulation (GDPR). Article 8 of the Human Rights Act gives everyone the right to privacy and family life – although this right is not absolute and may be qualified in certain circumstances (14). Under GDPR, schools must ensure that they have appropriate security measures in place to protect the personal data they hold, including information regarding gender reassignment or a child’s gender history. These regulations do allow for instances where a school may be permitted to disclose information to a third party – for example, the police or social services (15).
Applying the law
The level of support provided to transgender pupils under 18 will need to be handled sensitively and on a case-by-case basis. It should include an individual risk assessment of the pupil’s welfare and also consider the wider pupil cohort.
It should cover issues such as: the transgender pupil’s preferences and presentation; their communication about this to family and peers; how long they consider they’ve been transgender; whether they’re receiving treatment; whether or not welfare plans are in place; and guidance from children’s social care if anyone has welfare concerns or considers the pupil to be at risk of harm. The individual risk assessment should be reviewed regularly to ensure that it continues to meet the pupil’s needs.
Although it is difficult to generalise, some common principles apply when devising policies to support transgender young people in school, and to promote both safeguarding and inclusion.
There is no legal or regulatory requirement to have a separate policy on transgender issues in place. So schools may wish to review current related policies that address safeguarding and child protections, anti-bullying, equality and uniform so that they are inclusive of trans-identified pupils – and, in particular, cover situations where boys and girls are treated differently.
Trans is a general term. It includes gender non-conforming people, who do not identify with social gender norms, and non-binary people, who do not fit the gender norms associated with either sex. There is much variation and it is unwise to generalise, although carefully designed policies will be kind to individuals while maintaining safeguarding for everyone.
It should be noted that we all have a sex and this is defined by our biology. The female sex typically has the capacity to produce gametes (reproductive cells) called ova or eggs, while the male sex typically produces smaller, usually motile, gametes called sperm. There are only two types of gamete and therefore sex is binary.
Disorders of sexual development, also known as intersex conditions, occur within each sex. But, in the vast majority of cases, transgender people have typical sexual development and we are, therefore, not intersex. Indeed, advocacy groups are keen to emphasise that people with intersex conditions have distinct needs from people who identify as transgender.
For sex-based policies, the following would be best practice:
- Regarding toilets, changing rooms and residential trips, separate provision – private facilities such as “accessible” toilets, individual changing cubicles and showers, and single rooms – can preserve the rights and dignity of all. While it would be ideal to offer every pupil these options, building design and economies may mean that this remains an aspiration.
- Record-keeping should enable schools to aggregate data according to sex as well as the gender with which the pupil identifies. This can be vital when considering, for example, the relative performance of boys and girls. Equally importantly, it would permit the school to monitor the progress and outcomes of trans-identified children.
- Policies on PE and sport need to consider health and safety, as well as the dignity of all pupils. In particular, competition should be fair. The disparity between the sexes arises from biology, not gender identity, and it is dispiriting for girls to be at a competitive disadvantage against trans girls. While there is plenty of opportunity in school for all children to exercise together, fair competition is segregated by sex, not gender identity.
Gender-based policies can be inclusive so that all pupils enjoy the same freedoms:
- School uniform codes can apply in the same way to both sexes so that all pupils can access the same clothing options. Individual requests from pupils and/or their parents to adapt school uniform or dress code should be considered on a case-by-case basis and handled sensitively. Policies regarding make-up and jewellery can also be gender non-specific. Inclusive practice allows all children to express themselves as they feel comfortable without the need to identify as transgender.
- Issues may arise with sports kit, especially for swimming. Schools may allow flexibility in their arrangements and permit all pupils to wear skirted swimsuits, long shorts or short wetsuits as alternatives to traditional costumes.
- When children are grouped for activities, boys and girls need not be listed separately or treated differently unless it is considered necessary to maintain safeguarding.
- Insofar as is possible, both sexes should experience equality of opportunity and provision in the curriculum.
- Preferred names are widely used in schools, and the same policy can apply to children whose preferred name is usually associated with the opposite sex.
- Gender-neutral pronouns – for example, they/them – may be used as an alternative to sex-based pronouns.
Elsewhere, best practice is best practice for all, trans pupils included. For example:
- When children change their legal name, for whatever reason, it should be promptly updated in the school records. The sex usually associated with a name is irrelevant.
- Absence for medical appointments should be granted to trans-identified children in the normal way, according to established policy, ensuring privacy. Lack of local provision may mean that children need to miss a whole day’s school for a single appointment. That is unfortunate, but it can be logged as a medical appointment in the register like any other.
- Equalities should be embedded in the curriculum in order to foster a culture of tolerance and respect. Gender reassignment should be covered, along with other protected characteristics.
- Trans pupils may be considered to have a right to privacy and confidentiality if they are deemed to be of sufficient age and maturity. Any decision to disclose information should be taken in the context of existing safeguarding policy. Subject to the pupil’s right to confidentiality, parents of trans-identified pupils should be kept informed about issues in school regarding their child.
Children benefit from being members of diverse communities where everyone can make their own distinct contribution.
Specific advice for teachers
Teachers have a duty of care to all their pupils and a responsibility to keep them safe. Trans-identified children have the same needs as other children. Teaching and learning should not be affected by having a trans student in the class, and business as usual is the best policy:
- Call children by their preferred names, just like you would for any child. If a young person prefers to be called by their initials – for example, R J – they can be accommodated in the same way.
- Avoid discriminating between boys and girls. When all children have the same opportunities, trans-identified children do not need specific provision.
- Be alert to teasing, tormenting and bullying, and address them in line with school policies on safeguarding and anti-bullying.
- Protect the privacy and dignity of trans students in the same way that you would any student and never gossip about them to third parties.
- Do not advise students about their gender; treat them like everyone else in the class.
- Use the children’s preferred names, whether they are present or not.
- On occasions when boys and girls need to be treated differently – for example, in PE lessons – follow school policies so that there is consistency and continuity.
Transgender people – children as well as adults – have become increasingly visible in society. While the reasons and explanations for the huge rise in referrals to GIDS are hotly debated, a school’s role is to educate those children within their peer groups.
As society develops, some things never change. Children need to be taught, and they need to learn about themselves, each other and the wider world. But even more important than that, we must keep them safe – all of them.
Debbie Hayton teaches physics at a secondary school in the West Midlands. She transitioned seven years ago, and tweets @DebbieHayton
With special thanks to Yvonne Spencer, partner at education law firm Veale Wasbrough Vizards, and her team, who ensured the legal advice and descriptions in this article are in accordance with current legislation. She has worked with several schools on transgender policy queries and can be contacted at email@example.com
* This article was originally published by TES on 10 May 2019: Supporting transgender students: what you need to know.
- Trans Toolkit for Schools, Leicester LGBT Centre et al
- Supporting Gender Diverse and Trans-Identified Students in Schools, Transgender Trend
- Supporting Trans and Gender Questioning Students, National Education Union
- Trans Equality in Schools and Colleges, NASUWT The Teachers’ Union
- Schools Transgender Guidance, Cornwall Council, the Intercom Trust, and Devon and Cornwall Police
- Transgender Guidance for Schools, Torbay Safeguarding Children Board
- Transgender Guidance, Lancashire County Council
- Trans Inclusion Schools Toolkit, Allsorts Youth Project, and Brighton and Hove City Council
- The Equality Duty, East Sussex County Council
- Supporting Transgender Young People: guidance for schools in Scotland, LGBT Youth Scotland, Scottish Trans and the Scottish government
- The School Premises (England) Regulations 2012
- The Education (Independent School Standards) Regulations 2014
- Technical Guidance for Schools in England, Equality and Human Rights Commission (EHRC)
- Human Rights Act 1998
- Information Sharing: advice for practitioners providing safeguarding services to children, young people, parents and carers, HM Government