Subscribe
Article

A School’s Legal Obligations With Respect to Transgender Students

21/09/22
Resources

The team at School Governance has been in touch with several schools who are struggling with legal and policy issues related to transgender students. Specifically, we have heard from schools who want to know:

  • Can a school “require” transgender students to use a particular bathroom or bedroom?
  • Can/should a school inform other students that a transgender student will be using a particular bathroom or bedroom? Can/should the school inform staff and parents?
  • What if the school has more information about a transgender student than their parents do? How much information can/should be shared with the parents?

In this article we will explain some key terminology and legal obligations before we consider these questions and offer some practical tips for what schools can do to manage these potentially complicated issues.

 

Key Terminology

There is some variation in LGBTIQA+ terminology. In this article, we rely on the terminology used in legislation and by the national youth mental health foundation, Headspace, Intersex Human Rights Australia, and the LGBTIQA+ glossary of common terms issued by the Australian Institute of Family Studies.

LGBTIQA+: lesbian, gay, bisexual, transgender, intersex, queer and asexual, with the “+” acknowledging that there are many other diverse sexual orientations and gender identities.

Sex: a classification that is often made at birth as either male or female based on a person's external anatomical characteristics. However, sex is not always straightforward, as some people may be born with an intersex variation, and anatomical and hormonal characteristics can change over a life span.

Gender/gender identity: one's sense of whether they are a man, woman, non-binary, agender, genderqueer, genderfluid, a combination of one or more of these definitions or a sense of identity that falls outside of these definitions. Gender can be binary (either a man or a woman), or non-binary (including people who have no binary gender at all and people who have some relationship to binary gender/s).

Cisgender/cis: a term used to describe people whose gender corresponds exclusively to what they were assigned at birth.

Transgender: someone whose gender identity does not match the gender they were assigned at birth (e.g. a baby is assigned male at birth but grows up to identify as a woman). Research tells us that around 5 per cent of people are transgender.

Intersex: the working definition of intersex used by Intersex Human Rights Australia is: “Intersex people have innate sex characteristics that don’t fit medical and social norms for female or male bodies, and that create risks or experiences of stigma, discrimination and harm.”

 

 

A School’s Legal Obligations With Respect to Transgender Students

Student Duty of Care

Student duty of care is a legal concept which says that schools have a duty to take reasonable measures to protect students from risks of harm. The concept is a standard feature of school governance and compliance and most staff would have talked about it many times in the context of things like accidents, allergies, excursions, bullying and workplace health and safety.

LGBTIQA+ issues are no different. The primary concern is the safety and wellbeing of the student and the central questions are: what harms might affect LGBTIQA+ students and what should we do to prevent them?

 

Anti-Discrimination Laws

Aside from student duty of care, the main legal obligations with regard to LGBTIQA+ students and prospective students relate to discrimination. All schools are subject to Commonwealth and state/territory anti-discrimination laws.

There is some variation across the different jurisdictions, but generally the rule is this: it is unlawful to discriminate against someone on the basis of their sex, sexuality, gender identity or intersex status. “Discriminate” in this context means to treat a person “less favourably” than you would treat a different person in the same circumstances.

In relation to students and prospective students, this means that it is unlawful to:

  • refuse to enrol a prospective student because of their sex, sexuality, gender identity or intersex status
  • impose conditions on a student’s enrolment because of their sex, sexuality, gender identity or intersex status
  • expel a student because of their sex, sexuality, gender identity or intersex status
  • deny benefits or impose detriments on a student because of their sex, sexuality, gender identity or intersex status

(Note: it is also unlawful to discriminate on the basis of a student’s marital or relationship status, pregnancy or potential pregnancy, or breastfeeding, but for this article we are focusing on LGBTIQA+ issues).

There are two important exemptions to these anti-discrimination laws.

 

Exemption 1: Single-Sex Schools May Discriminate Against Children of the Other Sex

The first exemption is that single-sex schools are allowed to discriminate against children of the other sex, i.e. an all-girls school is allowed to refuse to enrol a boy.

Technically, this exemption would allow, say, a girls’ school to refuse to enrol a child of the male sex, even if that child identified as female. In practice, however, such a decision could face significant challenges and potentially cause harm to the people involved.

The latest advice from government is to bypass such challenges by using gender identity as a way of determining sex. For instance, the NSW Department of Education’s Bulletin 55 - Transgender students in schools advises: “If the student is seeking enrolment at a single-sex school, a decision about their eligibility to enrol should be made on the basis of [their] identified gender.”

What about a scenario in which a student at a single-sex school changes their gender identity after they’ve been at the school for some time? Here the NSW Department of Education advises that you seek advice: “If the student is already attending school, advice should be sought from Legal Services.” More practical advice comes from the example set by Cranbrook School, an all-boys schools in NSW, who supported a student who identified as female and allowed her to continue her studies under her new name. The school also consulted a gender identity counsellor to ensure that appropriate arrangements were made.

 

Exemption 2: Religious Schools May Discriminate to Avoid Injury to Religious Susceptibilities

The second exemption relates to religious schools. The Commonwealth version is found in section 38 of the Sex Discrimination Act 1984 (Cth). This law says that a religious school can discriminate against a student or prospective student on the ground of their sexual orientation or gender identity if:

  • the school is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and
  • the discrimination is done in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

In plain English, this means that a religious school can discriminate against a transgender child if the school really does practise its religious beliefs on a daily basis and the discrimination really is needed to protect people’s feelings about those beliefs.

In practice, a decision to impose this form of discrimination could be a challenging, complex and controversial decision that may impact the wellbeing of those involved.

 

Privacy Laws

Under the Privacy Act 1988 (Cth) (Privacy Act), schools must follow certain requirements when collecting and using personal information. One of the key requirements is to maintain confidentiality. Personal information in this context includes information about a student’s gender identity.

 

Beware: The Law is Complex and May Change

The information above in relation to national anti-discrimination laws is only a general summary. Always bear in mind that the law may be slightly different in your state or territory and the way the law is applied to a particular case is hard to predict.

We recommend that schools always seek legal advice before practising any type of discrimination. Also, this is a rapidly-changing area, so schools should consider subscribing to a law monitoring service to stay updated.

The answers below are based on the guidance from state and territory governments (see Further Resources below for links) and are not legal advice.

 

 

Can a School “Require” Transgender Students to Use a Particular Bathroom or Bedroom?

Some schools have expressed a concern that some cisgender girls may feel discomfort if a transgender girl shares the girls’ bathroom or girls’ bedrooms during an overnight stay. One way to manage this issue is to offer the transgender student access to gender neutral bathrooms and bedrooms. But more than merely offering, can a school require the transgender student to exclusively use a particular bathroom or bedroom?

State and territory guidance suggests that, no, a school cannot legally require a transgender student to exclusively use a particular bathroom or bedroom. For example, the Queensland guide for trans and gender diverse children and young people says: “There is no legal basis to deny a student access to a toilet that matches their gender identity.”

 

Also Consider

Having discussions around safety for all students can be helpful: “what does it take to feel safe”, “what do we need?” A potentially challenging situation can often be dealt with effectively via education or some group agreements. Conversations could cover the differences between safety and comfort and what it might take to make everyone feel safe. This may also mean offering gender neutral bedrooms not just to transgender students but to any student who is comfortable and feels safe being in mixed dorms.

 

 

Can/Should a School Inform Other Students That a Transgender Student Will Be Using a Particular Bathroom or Bedroom? Can/Should the School Inform Staff and Parents?

Under the Privacy Act, schools are required to protect information about a student’s gender identity. Generally, this will mean that a school cannot share that information with others unless the student consents to the sharing.

This suggests that, no, a school cannot legally inform others (students, staff, parents) that a particular student will be using a particular bathroom, unless the school has that student’s consent.

What if the school does not specify the student and merely states that “a transgender student” will be using a particular bathroom? If the student is “reasonably identifiable” then the privacy protections will still apply. In other words, if someone could ‘figure out’ which student you are talking about, then the protections apply, and you cannot issue the communications without the student’s consent.

 

 

What If the School Has More Information About a Transgender Student Than Their Parents Do? How Much Information Can/Should Be Shared With the Parents?

A student may wish to change the name or pronoun that appears on their records or may wish to be referred to by a name or pronoun that is different from what appears on their records. If the student’s parents consent to the changes, then this can be a straightforward process.

But what if the parents do not know of, or do not consent to, these changes? In this case, the maturity of the student becomes important. The Victorian Government’s LGBTIQ Student Support advises:

“If no agreement can be reached between the student and the parent/s regarding the student’s gender identity, or if the parent/s will not consent to the contents of a student support plan, it will be necessary for the school to consider whether the student is a mature minor.

If a student is considered a mature minor they can make decisions for themselves without parental consent and should be affirmed in their gender identity at school without a family representative/carer participating in formulating the school management plan …

To be considered a mature minor, principals or others working with students must be satisfied that the student has sufficient maturity, understanding and intelligence to understand the nature and effect of their particular decision.”

Although it is not stated explicitly in the Victorian advice, the implication is that, if the school determines that the student is not a mature minor, then the school should seek the parents’ consent and abide by the parents’ wishes.

 

 

What Can Schools Do?

Student gender identity is a complex and fast-changing issue that may leave some schools feeling daunted and confused. What can schools do to meet their legal obligations and provide the care and protection that students need?

 

Focus on Duty of Care to the Particular Student and Avoid Hypotheticals

As an individual, you have a variety of shifting responsibilities which may affect your views on gender issues. As a school, the situation is simpler because your primary responsibility is your duty of care to the student.

As a school you have no obligation to engage with or resolve abstract and controversial questions about the nature of sex and gender. Your obligation is to manage concrete and specific challenges involving individual students. On the topic of bathrooms, for instance, the key question is not “should a transgender student be allowed access to the girls’ bathrooms?” Rather, the key question is: “how can we best care for this particular student and meet their needs in regard to bathrooms?”

The first step to answering this question will likely be to engage with the student and, if appropriate, their parents to reach an outcome that suits them and the needs of the school. When issues are approached from this angle, many of the perceived challenges will vanish.

That being said, it is useful to set down some policy guidance ahead of time and, in some cases, you may be required to do so as a condition of registration. But remember that you don’t have to enumerate rigid procedures or make value statements. In your policies and procedures you can use language that allows for flexibility and discretion such as “we will manage this issue on case-by-case basis in consultation with the student and, if appropriate, their parents or a counsellor or other health professional”.

 

Practical Tips

Here are some things you can do to navigate this complex issue, support students and stay on top of your legal obligations:

  • prepare and share a transgender/gender diverse students policy
  • prepare a communications and media response plan
  • appoint student wellbeing staff
  • provide diverse sexuality and gender education to staff and students
  • develop and implement transgender management plans
  • develop partnerships with LGBTIQA+ community organisations
  • reach out to LGBTIQA+ staff and parents
  • record incidents involving LGBTIQA+ students
  • keep consistent and up-to-date records which reflect a student’s chosen name and gender
  • consult transgender and gender diverse professionals about their views on uniforms, bathrooms, change rooms and facilities for overnight excursions. Consult students and parents as appropriate, being aware that the onus is on the school to seek training and establish inclusive protocols in all of these areas proactively rather than reactively
  • seek advice from a lawyer and a gender identity counsellor
  • ask students how you can best support them
  • try and implement inclusive language in the classroom (rather than using terms like “boys and girls” use “everyone” or “class”)
  • introduce your pronouns when you introduce yourself
  • ask students to share their pronouns/name in use (if they want to – don’t make this compulsory)
  • offer pronoun badges
  • find opportunities in the curriculum to showcase LGBTIQA+ people in media, history, literature, science, etc
  • when grouping students or allocating tasks, avoid dividing on gender
  • be careful about confidentiality and “outing” people
  • proactively intervene when students are experiencing queerphobia. Not getting involved or taking a stance can leave LGBTIQA+ students vulnerable to bullying and harassment.

As author, educator and professional public speaker Nevo Zisin says:

“We all have the power to change the lived realities for our trans and gender diverse school community members and make them feel celebrated for exactly who they are. These practical steps can radically swing the often scary mental health statistics in our communities and allow people to bring their full selves to school and work. The world is shifting and changing and we must evolve and adapt with it, for the sake of future generations and for the sake of ourselves.”

 

 

Further Resources

State and Territory Guidance

ACT: What legal rights do you have at school as a trans or gender diverse young person?

NSW: Transgender students in schools

QLD: Trans@School: a guide for trans and gender diverse children and young people

SA: Gender diverse and intersex children and young people support procedure

TAS: LGBTIQ+ Equality and Inclusion in Education

VIC: LGBTIQ Student Support

WA: What legal rights do you have at school as a trans or gender diverse young person?

 

Articles

School Governance: Supporting Transgender and Agender Students

School Governance: Five Tips to Help Non-Government Schools Manage LGBTIQA+ Student Issues

School Governance: What If a Student Wants to Change the Gender on their School Records? Navigating the Issues

 

Books Suggested by Nevo Zisin

Books for Children and Young Adults

  • The Best Liars in Riverview - Lin Thompson (2022)
  • The Brilliant Death - Amy Rose Capetta (2018)
  • Dreadnought – April Daniels (2017)
  • Euphoria Kids – Alison Evans (2020)
  • Felix Ever After – Kacen Callender (2020)
  • Finding Nevo – Nevo Zisin (2017)
  • The Gender Fairy – Jo Hirst (2015)
  • Highway Bodies – Alison Evans (2019)
  • A House for Everyone – Jo Hirst (2018)
  • I am Jazz – Jazz Jennings & Shelagh McNicholas (2015)
  • I Wish You All the Best – Mason Deaver (2019)
  • IDA – Alison Evans (2016)
  • If I Was Your Girl – Meredith Russo (2016)
  • Introducing Teddy – Jessica Walton (2016)
  • It Feels Good To Be Yourself – Theresa Thorn & Noah Grigni (2019)
  • Kindred: 12 Queer #LoveOzYA Stories (2019)
  • Pet – Akwaeke Emezi (2019)
  • The Pronoun Lowdown – Nevo Zisin (2021)
  • Spellhacker – M.K. England (2020)
  • Stay Gold - Tobly McSmith (2020)
  • When Aidan Became a Brother – Kyle Lukoff & Kaylani Juanita (2019)
  • When The Moon Was Ours – Anna-Marie McLemore (2018)
  • Who Are You? The Kid’s Guide to Gender Identity – Brook Pessin-Whedbee & Naomi Bardoff (2017)

 

Books for Adults

  • The Argonauts – Maggie Nelson (2015)
  • Decolonizing trans/gender 101 – b. binaohan (2014)
  • Delusions of Gender – Cordelia Fine (2010)
  • Finding Nevo – Nevo Zisin (2017)
  • Gender Outlaw: On Men, Women, and the Rest of Us – Kate Bornstein (1994)
  • Histories of the Transgender Child – Jules Gill-Peterson
  • I Don’t Understand How Emotions Work – Fury (2019)
  • Memoirs of a Samoan, Catholic and Fa’afafine – Vanessa (2007)
  • My New Gender Workbook – Kate Bornstein (2013)
  • The Pronoun Lowdown – Nevo Zisin (2021)
  • Queer: A Graphic History – Meg-John Barker & Jules Scheele (2016)
  • Queer Wars – Dennis Altman & Jonathan Symons
  • A Quick & Easy Guide to They/Them Pronouns – Archie Bongiovanni & Tristan Jimerson (2018)
  • A Quick & Easy Guide to Queer & Trans Identities – Mady G & J.R. Zuckerberg (2019)
  • Redefining Realness: My Path to Womanhood, Identity, Love and So Much More – Janet Mock (2014)
  • Tomboy Survival Guide – Ivan Coyote (2016)
  • They/Them/Their: A Guide to Nonbinary and Genderqueer Identities – Eris Young (2019)
  • TransFamily: Australian Stories from Loved Ones of Trans and Gender Diverse People (2019)
  • Transgender History – Susan Stryker (2017)
  • Transgender Warriors: Making History from Joan of Arc to Dennis Rodman – Leslie Feinberg (1997)

 

Download White Paper

Share this article

Mark Bryan

Mark is a Legal Content Consultant at CompliSpace and the editor for Aged Care Essentials (ACE). Mark has worked as a Legal Policy Officer for the Commonwealth Attorney-General’s Department and the NSW Department of Justice. He also spent three years as lead editor for the private sessions narratives team at the Royal Commission into Institutional Responses to Child Sexual Abuse. Mark holds a bachelor’s degree in Arts/Law from the Australian National University with First Class Honours in Law, a Graduate Diploma in Writing from UTS and a Graduate Certificate in Film Directing from the Australian Film Television and Radio School.

Resources you may like

Article
Weekly Wrap: December 1, 2022

The information in the Weekly Wrap is aggregated from other news sources to provide you with news...

Read More
Article
Top 10 Most Popular Articles for 2022

School Governance wants to highlight some of our most read articles in 2022, as well as offer some...

Read More
Article
Information Sharing: Royal Commission Review

December 2022 will mark five years since the close of the Royal Commission into Institutional...

Read More

Want School Governance delivered to your inbox weekly?

Sign up today!
Subscribe