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

Published
10 October 2019

Recently there has been a lot of media attention on the way non-government schools manage issues relating to LGBTIQA+ students and prospective students (LGBTIQA+ stands for lesbian, gay, bisexual, transgender, intersex, queer and asexual, with the “+” acknowledging that there are many other diverse sexual orientations and gender identities).

Public commentary often makes these issues seem fraught, complicated and intimidating. But they don’t have to be. Just by bearing these five tips in mind you can simplify LGBTIQA+ issues and incorporate them into the everyday business of school governance and compliance.

 

1. Frame the Issue in Terms of 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 central concerns are 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?

Frame the issue in these terms and it can help you to keep your immediate and practical obligations separate from other more complex issues.

 

2. Understand the 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. Here are some brief explanations of some of the less commonly understood terms.

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

Asexual: Someone who has low or no sexual attraction to any gender, but may or may not have a romantic attraction towards another person.

Gender diverse: A broad term that can apply to many people who don’t conform to, or identify with, traditional sex and gender norms. This term includes young people who may identify as transgender, genderqueer, gender questioning or who feel that their gender identity does not align with the sex assigned to them at birth and/or society’s expectations. The person may identify as neither male nor female.

Intersex: Under section 4 of the Sex Discrimination Act 1984 (Cth) intersex means the status of having physical, hormonal or genetic features that are:

  1. neither wholly female nor wholly male, or
  2. a combination of female and male, or
  3. neither female nor male.

Although intersex people are often confused with transgender and gender diverse people, being intersex is not about gender identity and most intersex people identify as women or men. Research tells us that around 1.7 per cent of people are intersex.

Queer: This term has many different meanings, but it has been reclaimed by many as a proud term to describe sexuality or gender that is anything other than cisgender and/or heterosexual (“cisgender” is where your gender identity matches the gender you 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.

 

3. Understand Your Legal Obligations

Aside from student duty of care, the main legal obligations in 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 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 sexuality, gender identity or intersex status
  • impose conditions on a student’s enrolment because of their sexuality, gender identity or intersex status
  • expel a student because of their sexuality, gender identity or intersex status
  • deny benefits or impose detriments on a student because of their 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).

However, there are two important exemptions to these anti-discrimination laws. The first exemption says 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.

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 an LGBTQA+ 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. Note that in New South Wales this exemption is extended to all private schools regardless of their religious beliefs.

Also note that in the paragraph above, the “I” is missing from “LGBTIQA+”. This is because the exemption under the Commonwealth Sex Discrimination Act does not apply to intersex children. Under Commonwealth law, it is always unlawful to discriminate against a child on the basis of their intersex status.

This is where the law sits at the moment. It can be a complex area with some variation across jurisdictions, so we recommend that schools always seek legal advice before practising any type of discrimination on the basis of sexual orientation or gender identity. Also, it is a rapidly-changing area, so schools should consider subscribing to a law monitoring service to stay updated.

 

4. Make a List of Actions

There are many practical steps that schools can take to ensure they meet their duty of care and anti-discrimination obligations in regard to LGBTIQA+ students and prospective students. Some may suit your school and others may not, but here are some options to get you started:

  • appoint student wellbeing staff
  • provide diverse sexuality 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
  • consider the toilet and change room facilities available for transgender and gender diverse students
  • consider the facilities available for transgender and gender diverse students when arranging overnight excursions
  • consider uniform options for transgender and gender diverse students, including the option of gender-neutral uniforms.

 

5. Be Ready for Attention from the School Community and Media

If framed appropriately, LGBTIQA+ issues can be dealt with simply and methodically within the school governance context. Outside that context, however, these issues may be drawn into complex and highly publicised debates.

Here are some tips to help you manage any extra attention you receive from the media or school community when LGBTIQA+ issues arise:

  • Prepare and share your policy: ensure you have a clear, evidence-based LGBTIQA+ student policy and enrolment policy. Ensure that the key elements of these policies are communicated in plain English to the school community.
  • Prepare your communication plan: if an issue arises what will you say, who will say it and how will you make sure your message reaches the right people at the right time?
  • Focus on student duty of care, particularly in relation to privacy: if an issue goes public this may present new risks to the student. Ask yourself: what harms might publicity cause the student and what can we do to avoid them?

 

Conclusion

Outside of the school governance context, issues relating to LGBTIQA+ students and prospective students can be complex and controversial and are likely to remain so in Australia for some time. This is something that schools need to bear in mind, particularly when drafting communications strategies.

Within the school governance context, however, LGBTIQA+ issues are simpler than they first seem. In fact, to manage LGBTIQA+ issues you really only need to do one thing: implement clear policies that focus on student duty of care. This will help you to separate your immediate, practical obligations from the surrounding noise and incorporate LGBTIQA+ issues into the normal business of running your school.

Mark Bryan

Mark is a Legal Research Consultant at CompliSpace. 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.