Over the past five or so years a number of states and territories have changed their laws to allow people to change their gender identity on their birth certificate without having first to undergo surgery. Non-binary forms of gender are now recognised, to varying degrees, in most jurisdictions.

These legal reforms reflect a growing recognition of a fluid and diverse range of gender identities. Culture is changing. Some schools, particularly single-sex schools, may have concerns about how these changes will affect them, and how to proceed if one of their students, or prospective students, is transgender or agender.

In this article we use the case study of the Tasmanian gender laws (which include some of the most significant reforms) to prompt a discussion of the key issues and give some suggestions as to how schools may wish to proceed.

The Tasmanian Reforms

Last year, Tasmania passed the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas). This Act was used to make changes to a number of other Acts, including the Births, Deaths and Marriages Registration Act 1999 (Tas) (BDM Act). The changes took effect in September 2019.

Under the new laws:

• while a person’s sex must still be registered at birth as either female or male, parents have the option of not including information about their child’s sex or gender on their birth certificate
• people may apply to change their name and gender on their birth certificate and, if the person is under 16, the application can be made by a parent or guardian
• there is no longer a requirement for a person wishing to change their gender to have surgery. Instead they need to provide a statutory declaration confirming their gender.

The definition of “gender” in the BDM Act now includes:

• female and male
• indeterminate gender
• non-binary
• a word or phrase that is used to indicate a person's perception of the person's self as being neither entirely male nor entirely female.

The Impact of the Tasmanian Reforms

In June 2020, the Tasmanian Law Reform Institute published their review of the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas).

The Law Reform Institute stated that it “was directed to inquire into and report on a range of concerns about the law that had been raised by stakeholders and members of the community”.  The Institute reported that there appeared to be no adverse impacts of the law on Tasmania’s legal or justice systems; and that, despite concerns, it was unlikely that the laws would be abused given the safeguards that allow for the refusal of an application if it was found to not be legitimate.

Outside of the legal and justice system, however, the Law Reform Institute found that the reforms would have a major impact. Specifically, the reforms “will have a profound impact on the rights, health, well-being and sense of self of gender diverse people”. The Institute also commented that, “ultimately, the majority of arguments about the legal implications of birth certificate reform were better characterised as social, ethical or political in nature”.

What Does this Mean for Schools?

The Tasmanian reforms are symptomatic of a broader cultural shift that may affect schools across Australia. This shift involves a growing recognition of a fluid and diverse range of gender identities; it also involves a range of reactions to that growing recognition.

As a result of this shift, schools may have to deal with some complex issues. The key things schools should think about are:

• How will the school handle disagreements about a student’s gender?
• How does the school handle LGBTQIA+ student issues, including the safety and welfare of LGBTQIA+ students?
• What are the school’s obligations under anti-discrimination law?

How Will the School Handle Disagreements About a Student’s Gender?

Situations could arise where people in the school community disagree about a student’s gender and seek to impose their views on the school. For example, there might be disagreements about whether the student is “really” male or “really” female. Such disagreements may affect:

• whether a particular student is permitted to enrol at a single-sex school
• which bathroom a particular student should use
• where a particular student should sleep while on an overnight excursion.

In these kinds of situations schools will need to think about whether it is necessary for the school to resolve such disagreements. In many cases, it won’t be. Practical problems regarding bathrooms and sleeping spaces can often be solved without needing to have an official view about a particular student’s gender.

Schools who deem it necessary to take a position about a student’s gender should note that the process of reaching that position is potentially complex and fraught and may have implications for the wellbeing of the student and their family, may have legal implications and may cause controversy in the school community and the media. If faced with this kind of situation, schools should consider seeking advice from a lawyer and a gender identity counsellor.

How Does the School Handle LGBTQIA+ Student Issues, Including the Safety and Welfare of LGBTQIA+ Students?

In a previous article, we outlined five tips to help non-government schools manage LGBTIQA+ student issues. LGBTQIA+ stands for lesbian, gay, bisexual, transgender, intersex, queer and asexual, with the “+” acknowledging that there are many other diverse sexual orientations and gender identities.

See the article for full details, but in summary the five tips were:

• frame the issue in terms of student duty of care
• understand the terminology
• understand your legal obligations
• make a list of actions
• be ready for attention from the school community and media.

Overall, “frame the issue in terms of student duty of care” is perhaps the most important tip. Implementing clear policies that focus on protecting the health and wellbeing of LGBTIQA+ students 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.

What Are the School’s Obligations Under Anti-Discrimination Law?

Both of the issues we’ve discussed so far (disagreements about gender and concerns about LGBTIQA+ student health and wellbeing) may involve consideration of the school’s obligations under anti-discrimination law, so it’s important for schools to understand what those obligations are.

As set out in our previous article, all schools are subject to state and territory as well as Commonwealth anti-discrimination laws. Generally, these laws prevent schools from discriminating against students on the basis of their sexual orientation, gender identity or intersex status.

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.

However, 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 girl’s school to refuse to enrol a child of the male sex, even if that child identified as female. In practice, however, such a decision would face significant challenges as it would involve the school in a disagreement about gender with all the attendant complications we discussed above.

The latest advice from government is to bypass such complications 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 his or her 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 or agender 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.

Unlike discrimination on the grounds of sex, a discriminatory decision of this kind would not necessarily entangle the school in a disagreement about the child’s “real” gender. But, as with decisions about gender, this would still be a challenging, complex and controversial decision that may impact the wellbeing of the student and their family.

What Can Schools Do?

Gender identity is a complex and fast-changing area that the law is struggling to keep up with. Along with our tips about putting student duty of care first, 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/agender students policy
• prepare a communications and media response plan
• 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
• seek advice from a lawyer and a gender identity counsellor.

For more information, see the NSW Department of Education’s Bulletin 55 - Transgender students in schools and the South Australian Department for Education’s mandatory policy regarding appropriate arrangements for transgender students.

About the Authors

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.

Soo Choi

Soo Choi is a Legal Research Assistant at CompliSpace. She is currently studying a Bachelor of Arts and Bachelor of Laws at the University of Sydney.