In response to this question, the answer is probably ‘yes’ in some circumstances but ‘no’ in most circumstances. 'Transgender' is used as an umbrella term to refer to a person whose gender identity is different to the physical sex assigned to them at birth (definition taken from this Victorian Equal Opportunity & Human Rights Commission Guideline). School communities may have various transgender people including parents, students and staff.
Schools and staff
In recent years, very few schools have been reported for discriminating against teachers on the basis of gender. Schools, as employers of teachers, are conscious of their legal obligations and rights under state/territory and federal anti-discrimination laws, and are careful to avoid discriminatory practices when dealing with staff. Exceptions exist under legislation which allow employers to recruit people of a certain sex or to discriminate on the grounds religious beliefs if it is necessary to do so to comply with religious beliefs or sensitivities. The wording and scope of such exceptions varies between states and territories, with NSW having the broadest exemptions for all non-government schools from the application of most sex-discrimination legislation.
Legal exceptions aside, there are practical situations that arise during school daily events and activities when the gender of a teacher is a consideration, such as when a teacher is required to supervise students getting changed for sport or to ensure a supervisor gender balance when students are on a camp or tour. However, in a general classroom or other teaching environment, does the gender of the classroom teacher have any bearing on their ability to teach or would it affect their ability to provide a satisfactory level of duty of care for their students? I would argue, probably not.
Schools, as traditional bastions of ‘moderate conventionalism’, may find the request of a teacher who ends one academic year being identified as a ‘Mr’ and wishes to return in the next year as being identified as a ‘Ms’ (or vice versa), could be a matter that they may view with a considerable level of unease. But in all cases, they must proceed carefully and obtain legal advice when considering the staff member's employment situation. In most non-government schools, this would be uncharted territory and to date, there has been limited reporting in Australian schools where a teacher gender re-assigning has caused media scrutiny.
Some examples do exist. One media article was published in the Sydney Morning Herald (SMH) in 2016. A transgender teacher lodged a complaint of discrimination against the NSW Department of Education."You have to think of the children." That was what high school teacher Blaise Harris, a transgender woman, says she was told by a senior Department of Education manager when she complained about a school no longer offering her work. The article confirmed that the Anti-Discrimination Board of NSW accepted her case for adjudication.
Earlier this year, BuzzFeed News in the UK reported of a transgender teacher who took her own life after making a formal complaint to the Press Complaints Commission about media harassment. At the inquest into her death two months later, coroner Michael Singleton dubbed media coverage of her transition as “ill-informed bigotry”. Addressing the press at the end of the inquest, he said: “I say shame – shame on all of you.”
Schools and students
How schools treat transgender or intersex students has received much media scrutiny and increasingly, school departments and authorities are taking a clear stance on how schools should treat such students. But while Australian jurisdictions, such as this example from South Australia, are beginning to understand and introduce transgender and intersex policies for students into their government schools, there does not seem to be the same level of discussion regarding employees. There are many other developments in schools that demonstrate an increasing trend towards recognising gender equality and gender identity issues amongst students.
In a recent School Governance article, we noted that:‘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. Also in the same article regarding gender identity in schools, we commented that, ‘the trend towards recognition of different sexual orientations and gender identities is positioning many organisations to re-evaluate their understanding of gender and how they respectfully handle relationships with others’.
However, as noted by the Australian Human Rights Commission: ‘It is not clear whether a person discriminated against on the basis of their gender identity could rely on the sex discrimination provisions of the Sex Discrimination Act. Arguably, these provisions are broad enough to protect people who are discriminated against because they do not conform to the public expectations and stereotypes of their sex, including social expectations of self-presentation in terms of dress and behaviour. However, whether this applies to trans and intersex people is uncertain as it has not been tested in Australian tribunals or courts.’
In a scholarly article, ‘Gender Reassignment’ by Nicholas Tonti-Filippini of the John Paul II Institute for Marriage and Family Melbourne, Australia, Tonti-Filippini notes: ‘The legal issue is that a religious school may discriminate if it is necessary to do so to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.’This may or may not sit well with schools that have specific religious tenets that they believe give reference to gender issues. These exemptions for religious non-government schools who choose not to hire an individual as a member of staff on grounds that would otherwise be discriminatory, if that decision is in abidance with the school’s religious affiliations, are commonly referred to as ‘religious institutions exemption’.
However, the Guardian recently published an article regarding a new Catholic plan to combat homophobic bullying developed by Edmund Rice Education Australia (EREA), the education arm of the Christian Brothers. Within the text of the article it states: ‘It also assured teachers they would not be fired if they came out as LGBTI.’ Victoria Rawlings, a lecturer in education at the University of Sydney and expert on homophobic, transphobic and sexualised bullying in schools, said the EREA position statement was a “step in the right direction”. La Trobe University’s Dr Tim Jones said, “The Catholic schools are taking that leadership where the government couldn’t.”
Changing social attitudes and expectations
Now with the same-sex marriage survey returning a ‘Yes’ vote, advocates for Western Australia’s gay community are calling for 'an ‘anti-gay loophole’ in the State’s Equal Opportunity Act to be closed to prevent private schools from sacking gay teachers or expelling LGBTI students.’
Schools should note that bills that are being introduced into state and territory jurisdictions, such as this one in Victoria, to amend the Equal Opportunity Act 2010 (Vic) to limit the application of the special exemption for religious organisations and institutions, could soon also be expanded to include school employees. The possibility of transgender people applying to teach in schools is a reality that all schools may have to come to terms with at some point in time.
In the US, for example, St Mary’s Academy in Portland, Oregon, a Catholic school, has added sexual orientation to their anti-discrimination policy and effectively welcomed gay and lesbian staff to the school.
In a follow up article in the SMH by Ivy-Jane Browne, a year 12 student at Newtown High School for the Performing Arts, Ivy Jane summarised her argument with the following quote: ‘That Department of Education official is right – we need to think of the children. Think of the children who will grow up in a learning environment that doesn't accept who they are. Think of the children who will have no gender-diverse role models in their schools. Think of the teachers and students who will find it acceptable to misgender and misname trans students because they aren't exposed to any information on the issue. Think of the children who will not learn to accept others, and the children who will not learn to accept themselves.’
Schools that do not have policies and procedures in place to assist them to work with employees who wish to transit or re-assign gender, may find themselves not only in unchartered territory but perhaps also in front of a jurisdictional mediator with a ‘please explain’ request. Schools should have an Equal Opportunity Policy which aims, among other matters, to ensure equality and diversity for all present and potential employees and not to discriminate on the grounds of disability, colour, ethnic origin, gender, sexual orientation, age, religion, political or other opinions.
Legal advice is clearly a sensible option for a school who has a staff member who wishes to change gender, to ensure that unlawful discrimination, for "protected characteristics" such as sex and gender, does not take place.
Schools need a plan in place to assist them to deal with the request in a manner that supports the ethos of the school, supports the employee concerned (this would never be an ill-thought out decision), maintains relevant and suitable communication with the parents and involves, dare I mention this, consideration of the thoughts of the school’s students. As the SMH noted: "One kid said, 'Are you transgender?' and when I said yes, he said 'Oh thank God, I thought you were a hipster".