This is the first article in a two-part series on issues surrounding gender discrimination and identity in schools. In this series, School Governance reporters William Kelly and Kieran Seed review practical issues in gender identity as relevant to the school system, and investigate changes in obligations due to legislative developments. 

Increasing trends towards recognition of different sexual orientations and gender identities are positioning many organisations to re-evaluate their understanding of gender and how they respectfully handle relationships with others. With these issues regularly involving children and young people, schools in particular are being required to consider how they address issues of gender identity in all aspects of their education services.

As discussion and opinions in this area remain divisive, it is helpful for schools to understand the legal background, in order to be aware of their duty of care obligations and the potential for new legal obligations surrounding gender identity to be implemented in the future.

Legislative history and developments

Jurisdictional-specific equal opportunity legislation, such as the Anti-Discrimination Act 1977 (NSW), prohibit discrimination on the basis of gender identity or sexuality, while the Sex Discrimination Act 1984 (Cth) prevents educational discrimination due to a person’s sex. As a result of this, inflexible dress codes for instance may be considered as infringements to the Anti-Discrimination Act 1977 and otherwise (an issue considered in Part Two of this series).  That said, exemptions on certain grounds such as religion and sex, exist in each jurisdiction.  Recently, there have been attempts to remove religious schools exemptions to discrimination laws.

‘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.

Other developments demonstrate an increasing trend towards recognising gender equality and gender identity issues. As previously reported, the Respectful Relationships Education Program in Victoria has recently been introduced to educate students on the importance of, among other things, challenging discriminatory attitudes and gender labelling. A similar approach has been taken in Queensland, and under the NSW Years 7-10 PDHPE syllabus, which now includes specific lessons on gender issues. Tasmania has also made a commitment to developing a new Respectful Relationships curriculum.

These developments all centre on a key issue – the significance of recognising and managing issues of gender identity, including transgender and intersex persons.

Criticism of legislative changes

Despite legislative progression, evidence suggests that Australians remain divided on transgender awareness education. In a Vote Compass poll last year responding to the introduction of the Safe Schools program, when asked specifically about whether transgender awareness should be taught in primary schools, a greater proportion of the Australian population were opposed to such measures than in support of them.

Family values advocate Roslyn Phillips, former research officer for Family Voice Australia, has spoken out against gender awareness education and transgender/intersex procedures suggesting they could harm the very people they are attempting to protect. She stated that many young people who showed symptoms of gender dysphoria and felt unhappy with their birth sex would outgrow the feeling when not encouraged by schools and doctors. There is a suggestion that singling these children out may have negative consequences overall.

Should there be transgender/intersex guidelines?

The complex legislative environment has meant that many jurisdictions have implemented procedures and guidance documents to assist schools in supporting students’ diversity and gender identity, such as in Victoria and Queensland.

There are clear benefits associated with supporting schools to develop an inclusive approach to transgender/intersex students and general issues of gender identity. Research by the Australian Human Rights Commission (AHRC) suggests that schools with protective policies and procedures in place contributed to stronger feelings of safety and security among LGBTIQ students.

The alternatives – a lack of support or providing ineffective support – also has clearly documented implications. Transgender students are often more likely to experience bullying and exclusion; AHRC statistics suggest 80% of bullying involving young transgenders occurs while at school, significantly affecting their education and future wellbeing. Jill Davidson, the chief executive of SHine SA, has stated that such bullying could adversely impact upon the wellbeing, attendance and achievement of education outcomes of targeted students.

Perhaps the strongest example of gender identity management in schools comes from South Australia, where new mandatory guidelines have been introduced for supporting and managing transgender/intersex students take steps forward in gender education. While only applicable to South Australian government schools, all schools should be aware of them as a current standard of best practice and a representation of the latest legislative progression in this complex regulatory area.

Introduction to the changes

The SA procedure

The Transgender and intersex student support procedure, implemented by the SA Department for Education and Child Development (the Department) will allow students in government schools to:

• use and be addressed by their preferred first name and pronoun (including she/her, he/him, they/their), regardless of their enrolment information;
• have their preferred name recorded as part of the school management procedure;
• have their disclosure of gender identity treated respectfully and managed in accordance with confidentiality and privacy requirements;
• access toilets and shower/change rooms matching their gender identity;
• select their preferred uniform from the options available at the school;
• access accommodation on school camps and excursions corresponding with their gender identity; and
• participate in Physical Education lessons and other school sports as their identified gender.

While some have expressed concern that the procedure could be exploited, for example by enabling boys to sleep in the girls dormitories on a camp by pretending to be transgender, the Department has emphasised that it would only apply to students whose identity had been discussed with parents and confirmed by diagnosis from a health professional.

The policy

In conjunction with this procedure, the Department has also enacted the broader Supporting same sex attracted, intersex and gender diverse students policy, which makes it a requirement for government schools to ensure the best interests of children and young people in the design of policies, procedures and programs, including the curriculum and professional learning.

For example, schools need to ensure their anti-bullying and harassment policy addresses bullying considered to be “sexual, homophobic, biphobic and transphobic”.

While the Department has had similar strategies in the past, this is the first time they have been explicitly communicated through a single consistent approach. The Department is attempting to make legislative requirements as clear as possible to correct the uncertainties expressed by school principals and parents alike.

The policy and procedures are expected to be well-received and benefit all students and their families, not just those who are transgender and intersex.

How should schools respond?

SA Government Schools

The SA policy will be mandatory across all government schools and they should implement their own processes in consultation with students and their families in order to maximise physical and psychological safety and wellbeing. For example, if one or both parents object to their child affirming gender identity, then the best interests of the child will need to be assessed by the school.

Schools may need to ensure alternative options are in place for transgender and intersex students where it is not possible or safe to enable students to use a particular facility.  Alternatives include making available disability or staff facilities for these students, as well as private or separate sleeping quarters on camps and excursions.

Other Schools?

The policy and procedures are not a requirement for non-government schools, or any other school outside SA. Responding to the issue’s community divisions, the Association of Independent Schools of South Australian has stated that non-government schools were not developing a similar universal policy. Instead, non-government schools will approach the issue on a case-by-case basis, due to the unique individual needs of the students and the school community.

As our earlier article suggested, while it may be lawful for non-government schools to legally discriminate against students who are not of the sex/religion required by their establishment, there is a legal grey area in respect of a school's common law duty of care to students who wish to identify as another gender in their appearance or behaviours.

How will your school be responding to these legislative developments?