What Are a School’s Obligations With Respect to Transgender Students?

In a previous article we summarised some of the key legal obligations that schools have with respect to transgender students. In brief, these include:

• Student Duty of Care – schools must take reasonable care to protect students from reasonably foreseeable risks of harm.
• Anti-Discrimination Laws (both federal and state/territory) – broadly speaking, schools must not discriminate based on a student’s sex, gender identity or intersex status; however, there are some exceptions to this general rule.
• Privacy Laws – there are limitations on how schools collect and use the personal information of students, including information about a student’s gender identity.

In addition to these main obligations, schools should always be mindful of any other laws which may be relevant such as work health and safety laws, child protection laws, and laws relating to conversion practices.

Schools must also consider any other rights that the school, students or their parents/carers may have, for example, contractual rights that exist under a school enrolment agreement.

Can Schools Exclude Transgender Students from Participating in a School Sporting Activity?

School sport and physical activities are an important part of a child’s education and development. As such, all students, including transgender students, should be afforded the right to participate in these activities as far as this is possible.

Bearing this in mind, the Sex Discrimination Act 1984 (Cth) (Act) does permit schools to exclude, on the ground of sex, gender identity or intersex status, students from participating in “any competitive sporting activity in which the strength, stamina or physique of competitors is relevant”.

Noticeably, the Act refers only to “competitive sporting activities” and not just any sporting or physical activity in which students may participate. The Act does not say what constitutes a competitive sporting activity.

The Act also says that it is not just any competitive sporting activity to which the exemption applies, but only those “in which the strength, stamina or physique of competitors is relevant”. This wording gives rise to multiple interpretations.

The Equal Opportunity Act 2010 (Vic), when discussing a similar exception in Victoria, defines “competitive sporting activity” as “any exhibition or demonstration of a sport, but does not include the coaching of people engaged in a sporting activity, the umpiring or refereeing of a sporting activity, the administration of a sporting activity or the non-competitive practice of a sport”. While considering the Victorian exception, the Victorian Anti-Discrimination Tribunal said, in Robertson v Australian Ice Hockey Federation, that the exemption “is directed to competitive sporting activities where, if both sexes competed against each other, the competition would be uneven because of the disparity between the strength, stamina or physique of men and women competitors.” This means that the exemption does not apply merely because strength, stamina or physique are involved in the playing of the sporting activity, but where this would cause the competition to be unfair. Later cases (including Ferneley v The Boxing Authority of New South Wales, which considered the Commonwealth provision) have supported this interpretation. Although these cases have focused mainly on discrimination on the ground of sex, this interpretation might still shed some light for schools on how the exemption might apply with respect to gender identity.

What is clear is that the Commonwealth exemption does not apply to children under 12 years old. Therefore, a school cannot exclude a transgender student under the age of 12 from participating in a school sporting activity. The exemption also doesn’t apply to coaches, referees or administrators.

When considering whether to exclude a transgender student aged 12 years or older, schools will need to judge for themselves as to whether this exemption applies. If a school does wish to rely on the Act’s competitive sporting activity exemption to exclude a student from participating in a school sporting activity, it may want to consider the following recommendations, taken from the Guidelines for the inclusion of transgender and gender diverse people in sport (Guidelines) developed by the Australian Human Rights Commission, Sport Australia and the Coalition of Major Professional and Participation Sports:

• prior to seeking to rely on the exemption, have and make publicly available a policy which states:
  • how the school will assess the application of the exemption
  • who will make the assessment
  • what evidence will be used for this assessment, as well as the other factors on which the assessment will be based
• ensure that any assessment is undertaken in a timely manner so that the student is not unnecessarily disadvantaged
• provide the student with an opportunity to respond to any proposal to exclude them based on the exemption
• provide the student with written reasons for any decision to exclude them
• provide the student with an opportunity to seek a review of a decision to exclude them.

Schools should also be mindful of equivalent requirements and exceptions under relevant state and territory laws.

Can Schools Make Transgender Students Use a Particular Dressing Room?

As previously mentioned, state and territory guidance suggests that a school cannot legally require a transgender student to use a particular dressing room. For example, the Queensland Human Rights Commission says: “There is no legal basis to deny a student access to a toilet that matches their gender identity.”

As a result, schools might consider making their facilities more inclusive. The Guidelines suggest that you may do this by adjusting dressing rooms so that they are gender neutral (for example, by changing the signage on dressing rooms) or creating “private spaces” by using taller doors and shower curtains.

Can Schools Make Transgender Students Wear a Particular Sports Uniform?

Generally, it appears that schools can set their own policy when it comes to uniforms. However, schools should take care to ensure that these policies do not discriminate against any particular students, including transgender students, as this might be unlawful under anti-discrimination legislation.

In some jurisdictions, legislation does permit schools to discriminate on the basis of dress and appearance. For instance, the Equal Opportunity Act 2010 (Vic) lets Victorian schools set and enforce reasonable standards of dress, appearance and behaviour for students.

Exceptions also exist for religious schools to discriminate against someone on the ground of their gender identity, if the discrimination is in order to avoid injury to the religious susceptibilities of the adherents of the school’s religion. However, this exception is the subject of recommendations made by the Australian Law Reform Commission’s Religious Educational Institutions and Anti-Discrimination Laws Report, which was recently tabled in Federal Parliament and proposed changes to the application of the religious institution exception to transgender students.

However, it is unclear whether these exemptions would operate to let a school decide that a transgender student must wear a particular sports uniform (for example, one that does not match their gender identity) when they are participating in a school sporting activity. Therefore, schools might instead consider making sports uniforms inclusive by:

• removing gendered uniforms if they are not needed for the particular sport
• letting students choose what uniform they would like to wear
• ensuring that they provide different clothing options that are appropriate for diverse body types.

Can Schools Share Information About Transgender Students Who Participate in School Sporting Activities?

Schools have an obligation to protect the personal information that they collect about students, including information about a student’s gender identity. This may arise in relation to interschool competitions where participant schools may have different policies relating to transgender students. However, as with most matters relating to privacy, a prudent school will seek the consent of the student and/or their parent/carer to release this information.

In cases where the student or their parent/carer does not consent to the student’s information being used or disclosed, the school may still be permitted to share the information if they have a legal basis for doing so, for instance, they might be able to disclose the information where there is a risk of harm as part of their duty of care to all students.

Because a school’s obligations with respect to a student’s information will depend heavily on the circumstances, it is best for schools to seek legal advice when considering when to use or disclose personal information relating to the more complex areas of gender identity.

Conclusion

All students, including transgender students, should have the right to participate in school sporting activities. To help make this possible, schools should consider the following:

• the needs of the student involved, for instance, the school should determine the decisions that the student has made regarding their identity, their preferences, and any support that they may require
• the involvement of parents/carers including the contractual relationship that exists between the school and parents/carers
• the school’s duty to protect transgender students from bullying, discrimination, and other harm
• the school’s duty of care to all students
• the school’s privacy obligations with respect to collecting, using and disclosing personal information
• how the school can manage any risks associated with the involvement of transgender students in sport
• if relying on any exemptions, ensuring that the correct policies and procedures are in place before doing so
• having clear and accessible policies and procedures around school uniforms and the use of dressing rooms and consistently applying and reviewing these policies
• educating the school community on issues relating to transgender and gender diverse individuals
• when more than one school is participating in a sporting activity, any differences in each school’s approach to the inclusion of transgender students in sport
• ways to make school sporting activities more inclusive, for example, using gender-neutral teams or adjusting the rules to allow gender diverse students to participate.

Disclaimer

The contents of this article are generic in nature and do not represent advice that can be relied on. This article has been prepared without taking account of any person’s individual objectives, situation or particular needs. You should seek professional advice based on your own personal circumstances. The author and any other parties involved in the preparation or distribution of this article expressly disclaim any form of liability to any person in respect of this article and any consequences arising from its use by any person in reliance in whole or any part of the contents of this article.