A transgender Canadian student's quandry about where to sleep on a school camp highlights some of the difficulties faced by schools when trying to sensitively deal with transgender (someone whose gender identity does not match the sex recorded at birth but grows up to identify as another sex) students.

The student, a 14 year old transgender boy (recorded female at birth and needing to identify as male), experienced distress at the approach taken by his school when it was determining whether he should sleep with male or female students.  The student's preference was for him to sleep with his male friends and although the school originally suggested he sleep with the female students, it ultimately changed its decision.  From the media report, it appears that the school originally thought that it would have to inform the male students' parents of the student's gender before allowing him to share accommodation with his male friends.

It was the school's delayed decision making process, and the student's parents' concern for their son's privacy if the other parents were told about his gender, that made them approach the media about the issue.

For people with gender identity issues, society often has difficulty in ensuring they are treated sensitively and fairly. This is not a trivial matter. This is especially the case for transgender school students who may exist in an educational environment where staff and students don't understand what 'transgender' means and how transgender students should be treated, which can lead to intolerance, violence, bullying and depression. What can also be seen from the Canadian case is that each transgender student's needs cannot be assumed, which makes it an even more complex area.

Diversity in schools

The Canadian student's difficult camp scenario is just one of the many considerations schools must confront when making decisions in relation to transgender or intersex students. Intersex is where a person has physical, hormonal or genetic features that are neither wholly female nor wholly male, or a combination of female and male, or neither female nor male.

Other considerations, as set out in a Queensland Department of Education,Training and Employment guide include:

• student name - students should be able to choose the name they'd like to be referred to;
• toilet and change room use - the school should discuss with the student and parent/carer which bathroom to use;
• school dress code - a gender-neutral uniform option can be made available; and
• sporting activities - schools can discuss with the student and parent/carer how to approach sport participation.

However, while students at non-government mixed sex schools may have more options available to them in terms of being able to accommodate their gender-identity status while remaining at the school, it may not be as simple for students at, or wishing to attend, non-government single-sex (or 'single gender-identity') schools or non-government religious schools.

What does the law say?

The States and Territories have different definitions of gender identity but the Federal Sex Discrimination Act 1984 (Cth), amended in 2013, provides a useful definition of the term.  That Act defines 'gender identity' to mean 'the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.'

It is well-established under Federal and State/Territory anti-discrimination legislation,  that it is lawful for non-government schools to be established wholly for educating students of:

• one sex; and/or
• one religion;

and that those schools can legally discriminate against students who are not of the required sex or religion.  'Gender' is different to 'sex', so what happens when a student identifies with a gender which does not align with the sex they were designated at birth?

If a student is legally recognised as transgender they may not have the right to remain at the non-government school where they were enrolled prior to changing their legal status.

In such a case, a non-government school may be able to legally exclude the transgender student if their new gender identity is contrary to the principles on which the school is established. This is the case even if the law may state that a school's educational status won't be affected if it accepts a transgender student.

However, a 'grey' area exists for those students who, if not 'legally' transgender, may still want to identify as the another gender with their appearance or behaviours.

In this case,  single gender-identity or religious schools may create a policy to manage how they will deal with such students, including how they will approach the considerations listed above - in order to accommodate a student at school if they decide to transition while at school.  The Victorian Department of Education and Training provides guidance on their website..

Sensitivity and safety is key

A recent report by BeyondBlue, La Trobe University and the University of New England  'From blues to rainbows: The mental health and well-being of gender diverse and transgender young people in Australia' ( the Report) is a comprehensive and informative resource for all schools on what can be done to support young gender diverse and transgender people to increase their mental and general wellbeing.  As stated in the Report, 'it has been well documented that lesbian, gay, and bisexual young people can experience higher rates of bullying and exclusion than their heterosexual counterparts; however, gender diverse and transgender young people experience even higher rates of bullying and exclusion'.

It is a school's duty to ensure the safety and welfare of its students and this means that when considering situations involving students and the issue of gender identity, the student's welfare should be a priority and training and policies may be required to ensure a safe environment is provided.  In any case, school policies  on appearance, dress and behaviour when applied to the transgender student should be reasonable and applied sensitively to avoid allegations of unlawful discrimination.

Although this article has given a high-level overview of some of the legal and procedural aspects of non-government single gender-identity or religious schools with transgender students, every circumstance is different and highly nuanced in terms of the relevant laws and social considerations.  Further advice can be found from organisations such as the Safe Schools Coalition of Victoria.