CompliSpace recently hosted a live webinar, “How Schools Can Better Support their Transgender and Gender Diverse Students”. In this article, we summarise the questions and answers from the webinar to help schools navigate this issue.

Joining the panel is Nevo Zisin an author and esteemed educator on transgender topics and Deb de Fina, CompliSpace's Principal Consultant - Child Safeguarding.

Here are the main questions from the webinar:

What are the minimum standards that are based in legislation that help to create a child safe environment?

Deb:

• The National Principles for Child Safe Organisations is the main legal framework that creates an obligation to create a safe environment for transgender and gender diverse students. The National Principles were published by the Australian Human Rights Commission, and are based on the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). There are 10 National Principles that make up the minimum standards that an organisation must meet to be considered child safe.
• In most jurisdictions, compliance with the National Principles – or jurisdictionally-based equivalent Child Safe Standards (such as in Victoria, NSW and, in the near future, Tasmania) – is, or soon will be, required by law. Compliance with the National Principles or their equivalents are often a school registration requirement.
• The main Principle that applies is National Principle Four – equity is upheld and diverse needs respected in policy and practice. In Victoria, the equivalent is Child Safe Standard Five.
• National Principle Four specifically requires organisations to provide support for, and respond to, children who are vulnerable. The Australian Human Rights Commission, and most jurisdictions’ guidance on how to implement the National Principles/equivalent Child Safe Standards, define “vulnerable children” as including LGBTQIA+ children; in particular, transgender and intersex children and young people are specifically mentioned as being particularly vulnerable.
• The Royal Commission commissioned research on additional vulnerabilities for children. Children who are transgender, gender questioning or gender diverse have been found to be particularly vulnerable to particular kinds of abuse, including sexual abuse, physical abuse, bullying and self-harm. International studies have found gender questioning children are at greater risk of homelessness and physical abuse.
• Principle Four requires the organisation to have specific policies in place that promote equity and respect diversity and to train staff and volunteers to recognise and respond effectively to children and young people with diverse needs.
• Other relevant Principles include:
  • Principle One, which requires that a child safe culture is championed and modelled at all levels of the organisation, and that staff and volunteers have a sound knowledge of children’s rights, including their right to feel safe and be heard
  • Principle Two, which requires the organisation to recognise the importance of friendship and peer support to help children feel less isolated and for the organisation’s environment to be friendly and welcoming to all children.

Nevo:

• What’s really important within all of this conversation is being able to hold nuance and being able to hold some contradictions.
• These standards of child safety are incredibly important to keep in mind, along with empathy and compassion.
• It’s important that we are connected to our own moral compasses, to our own sense of integrity, that we are able to view other people as extensions of ourself, and treat people as we would want to be treated in this world, and connect on a much deeper level that goes beyond just what is legally required of us.
• Those things are really helpful to convince people who are maybe not on our side or to see what the minimum standards are, but I think as individuals and within organisations, and just in our personal lives, it’s crucial that we are trying to understand people more deeply, to hear their stories and to hear the poetry that is going beyond those conversations.
• I think in general it’s really important that we move away from some of that rigidity and some of that hierarchical power, and move more into our felt sense, into what it means to be of nature, to be interconnected, and that all of our liberation is intertwined and related to one another’s.

How do we create a safe environment and have conversations about gender diversity and about safety in a school where these are perceived as difficult or divisive? How do we create that sense of empathy?

Nevo:

• I came out in 2013, and despite the limitations of those around me, I really do think that they did the best that they could with what they had available to them.
• But coming out as trans in high school, when there was really no one else who was out at the time, at least publicly, was incredibly challenging. The school really didn’t know what to do with me.
• Challenges I experienced included resistance to changing my uniform, resistance to changing my name on school records, and social exclusion.
• Experiencing suicidal ideation and then having to be an educator for everyone around me was also really challenging.
• I created the resources that I’ve written, so that young trans people don’t have to be educators.
• A teacher who provides a safe space to go to can make all the difference.

What should a school do in relation to gender diverse students when parents are at odds with their child’s wishes in relation to pronoun or preferred name changes, or the wearing of different uniforms, or where the student has communicated with the school, but not their parents, about their needs?

Deb:

• Legally, a school has a duty of care towards that particular student, to protect them from reasonably foreseeable risks of harm. If a student and parent disagree about pronoun choice, preferred name or uniform, or if a student wants to be ‘out’ at school but doesn’t want their parents to know, a school has to ask itself: What harm is reasonably foreseeable to that particular student if we do not abide by their wishes?
• In addition, schools must be aware of the concept of the “mature minor” – the ability of children, when they have reached a sufficient level of maturity and understanding, to make decisions for themselves. The concept of a “mature minor” is a medico-legal one, which came out of the English case of Gillick, and was incorporated into Australian law in the case of Re Marion. Being a mature minor is often referred to as “Gillick competence”. It means that a child has a level of understanding and intelligence in relation to the decision and its consequences to make their own decision in relation to a particular matter (including, in particular, medical decisions with serious consequences).
• The concept of the mature minor/Gillick competence has been incorporated into most jurisdictions’ health and education systems and more guidance can be found in education and health department guidelines. While the older a child is the more likely they should be able to make their own decisions, there is no minimum set age at which a child is or is not Gillick competent – it depends on the particular child and on the decision to be made: a young child might be Gillick competent in relation to some decisions, but not others.
• So in the school context, if a child is a “mature minor” or “Gillick competent”, they have the right to make decisions for themselves in relation to pronoun use, preferred name and uniform.
• If they are not a “mature minor” in relation to a particular decision, then it is likely that the parent’s views could prevail, but the school must still consider their duty of care towards that child.
• So as mentioned above, the most important thing in respect of the duty of care is, “What is the reasonably foreseeable risk of harm to that child, if you don’t abide by their wishes?”

Nevo:

• According to the Trevor Project's National Survey in the United States in 2021, trans and non-binary youth who reported having pronouns respected by all or most people in their lives attempted suicide at half the rate of those who did not have pronouns respected. This shows that correct pronoun use is a matter of suicide prevention.
• There are a number of statistics that demonstrate the harm that can come to transgender and gender diverse students. Now, these statistics are sometimes used against transgender and gender diverse people, as a way of saying “Don’t be trans, look at what it will do to you”. But, these statistics are in fact a demonstration of the potential harm to a transgender or gender diverse student if they are not supported to be who they are:
  • The Trans Pathways Survey of 2017, which was the largest survey ever conducted in Australia on mental health and care pathways of trans and gender diverse young people, found that “4 out of 5 trans young people have ever self-harmed”.
  • “Almost 1 in 2 trans young people have ever attempted suicide” (48.1 per cent), which is 20 times higher than the general adolescent population.
  • Let’s talk about the child safety of these gender diverse people: 89 per cent have experienced peer rejection; 74 per cent bullying. 22 per cent have experienced accommodation issues or homelessness.

How can schools empower young people to use the bathroom facilities or camp accommodation of the gender with which they identify?

How do we prepare peers for this use/involvement/inclusion?

Do we inform the families of the other students, or is this a breach of privacy?

Deb:

• This was addressed in our previous School Governance article on this subject.
• In general, if the young person is a “mature minor” and does not consent to the school revealing their gender identity, or otherwise if the child’s parents don’t consent, then schools cannot disclose that information to others. They can’t tell other students or their families that the child will be using a particular bathroom or sleeping in a particular room at camp.
• That doesn’t mean that there shouldn’t be a conservation about safety – everybody’s safety. Those conversations can occur in way that does not breach privacy.
• The Queensland Human Rights Commission has some very good examples of ways that schools have supported transgender students with such things as going on school camps and playing gendered sports.
• Schools need to respond to particular Deal with particular situations, as they come up, and remember that your first priority is the safety of that particular child, and that there is no evidence whatsoever that allowing a transgender person to use a particular bathroom or stay in accommodation with peers of the gender with which they identify is a safety risk to other people .

Nevo:

• With respect to discussions around the safety of peers, we need to differentiate between safety and comfort – just because something feels uncomfortable or you don’t understand it, that isn’t the same as feeling unsafe. It’s important to also look at the characteristics of safety.
• Support for the students themselves can include the following:
  • When transgender and gender diverse students feel safe to find their own community within a school, they are able to connect with others to talk about their identity.
  • The option of anonymous engagement can be really helpful.
  • A teacher liaison could advocate within the school community for certain changes.
  • Outward celebration like IDAHOBIT, Trans Day of Visibility, and Wear It Purple Day, are great events that a school can be involved with.
  • Having queer or transgender authors or books, about any topics, can help to show young people that they exist in both the zeitgeist and in history.
• Have resources on hand for when these students need assistance. So yes, focus on the particular circumstances that arise but also have policies and proactive mechanisms in place, such as transition guidelines, that show people what to do when these issues arise.

Are there any additional points to raise about how creating a child safe environment operates within a religious or conservative school?

Deb:

• The National Principles, in those jurisdictions that have them and make them a registration requirement, apply regardless of religion.
• Even where compliance with the National Principles with respect to recognising and supporting transgender and gender diverse children is not a registration requirement, or where the jurisdiction’s equivalent child safe standard does not specifically mention LGBTQIA+ children (such as in NSW, where it would appear that references to LGBTQIA+ children have been purposefully removed from the equivalent Child Safe Standard), schools should still look at best practice in other jurisdictions, to incorporate those policies and procedures that are needed.
• The National Principles also require that schools involve students and relevant communities in developing these policies and procedures. For this purpose, the relevant community is any transgender or gender diverse students that the school has, and their families.
• To be a child safe organisation, children have to feel that they are heard.

Nevo:

• Turn to consultation with students and also within communities – there are ways to have culturally safe conversations around transness and gender diversity.
• Look at case studies of specific communities for how to have those conversations in ways that are religiously or culturally safe.

Final thoughts?

Deb:

• “Giving” transgender and gender diverse students rights does not take away the rights of others.
• Rights are not this finite “pie” of rights, where giving a slice of the rights pie to one group means that another group has a smaller slice of the rights pie – giving rights to additional groups just expands the size of the pie.

Nevo:

• Be aware of misinformation. A good resource for identifying dangerous anti-trans disinformation is by Jackie Turner, head of the Trans Justice Project, found here.
• Some argue that enabling the safety of transgender and gender diverse students creates safety issues for other children. There is no evidence to suggest that transgender and gender diverse children are more likely to abuse other people. In fact, it’s the other way around – transgender and gender diverse people are more likely to be abused. Therefore these students desperately need their schools to protect and support them.

Further Resources

This School Governance article provides a list of helpful resources when supporting transgender and gender diverse students in a school environment.