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

10/02/22
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NSW

Recently there has been a lot of media attention regarding the manner in which some non-government schools manage issues relating to the gender identity of students, prospective students and even past students. The debate around the religious discrimination Bills currently before Federal Parliament has only brightened the spotlight on these issues. Regardless of this media attention, many schools have begun to assess their school policies and practices with a focus on creating an environment where all students, including transgender and gender-expansive students, feel that they belong and are safe and welcome in the school.

In taking these steps, schools may have to navigate complex issues. What should a school do if a student requests a change to the gender that is recorded on their school records? And is a school required to obtain the consent of the student’s parent/guardian in order to change those records? “School records” in this context would include academic, testing and school medical records.

There are no simple answers to these questions, and a school will need to consider a number of factors to ensure that their duty of care to the student remains their priority. This article looks at the factors and how a school can manage requests from students to change their gender (or pronoun) on their school records both with and without a parent/guardian’s consent.

 

Student Duty of Care

All schools are aware that they have a duty to take reasonable measures to protect students from risks of foreseeable harm. When responding to a student’s request concerning their gender identity, the school’s duty of care to the student is paramount, as these matters can be particularly complex and fraught and can affect the health and wellbeing of the student. The student’s wellbeing will need to be considered carefully at every step of the process.

 

Parent/Guardian Involvement

A school’s duty of care towards a student will need to be considered when factoring in parent/guardian involvement and consent. The agreement of a parent/guardian will inevitably simplify the process of changing a student’s records. However, if there is disagreement between the parents and the student as to changing the student’s name or pronoun, it will be a matter for the school to decide whether the student has the relevant level of maturity and understanding to be able to make decisions themselves without parental consent.

If the student is mature enough to understand the implications of their decision and has indicated a lack of support from their family or a risk of harm at home because of affirming their gender identity, the school will need to ensure that they are acting in the best interests of the student and not in a way that could contribute to the risk of harm.

 

Official Documents

In the unofficial day-to-day context, students’ wishes are usually taken into account when they ask to alter their personal details, such as when they ask for a preferred pronoun or name to be used on class rolls. Parental disapproval should not prevent the school from using the student’s preferred name and pronouns in these circumstances. Failure by the school to consent to make those changes may amount to gender discrimination (which is discussed later in the article).

However, complexities arise where a student wishes to change official school records without parent/guardian consent. As the majority of students are under the legal age of 18, it is often very difficult for them to legally change their name on primary legal documents such as their passport or birth certificate without parent/guardian consent. Furthermore, some official documents must be consistent with a birth certificate or passport, and so cannot be changed until the change is first made to the primary documents.

If parent/guardian consent is given and there are no other legal requirements, the school should be able to begin the process of changing official school records. However, as mentioned above, if there is disagreement between the parents and the student as to changing the student’s name or pronoun, it will be a matter for the school to decide whether the student has the relevant level of maturity and understanding to be able to make decisions themselves without parental consent and how changing that pronoun, or not changing that pronoun, will affect the welfare of the student in light of the school’s duty of care.

Schools may also receive requests from former students who wish to change their details on official school records. Changing these records will be important for former students who are seeking employment and wish to have their name and pronouns accurately reflected on formal documentation such as academic records. Past students may ask to have these official school records changed if they have officially changed their name on primary legal documents such as a passport or driver’s licence.

 

Discrimination Laws

Very generally, the law is this: it is unlawful to treat a person less favourably than you would treat another person who did not have the characteristics protected by anti-discrimination laws. Unlawful “direct discrimination” based on gender identity is when someone treats the person unfairly or bullies them because of their gender identity.  According to the Australian Human Rights Commission, refusing to change a person’s records to reflect their preferred name or preferred pronoun may be an example of “indirect” gender identity discrimination.

All schools are subject to Commonwealth and state/territory anti-discrimination laws in some way, but there are exemptions from some aspects of discrimination legislation in relation to the provision of education. The key exemption relates to schools which are:

“an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first‑mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”.

(section 38(3) of the Sex Discrimination Act 1984 (Cth)).

However, what may be an exemption under federal laws may not be an exemption under the relevant state or territory law. We saw this recently in Queensland where the exemption under state legislation for educational institutions “that operate for wholly or mainly for students of a particular religion” is limited to the school’s right to exclude students who are not of that particular gender (in the case of single-sex schools) or not of that particular religion (section 41 Anti-Discrimination Act 1991 (Qld)). What would appear to be lawful discrimination under Commonwealth law could be unlawful under Queensland law.

An aggrieved student may be able to pursue action against a school under either state/territory or Commonwealth legislation depending on which is the more favourable to them. To work out your school’s obligations you will need to check, or seek legal advice about, the application of Commonwealth and your state or territory’s anti-discrimination legislation.

Unless a school comes under the exemption in both the federal and their state or territory anti-discrimination laws, then denying the student a change in pronoun or name relating to their gender is likely to be unlawful discrimination.

This is a complex area with variations across jurisdictions, so we recommend that schools always seek legal advice before deciding how to proceed. The religious discrimination Bills currently before the Federal Parliament, and the amendments that have been made to the Victorian Equal Opportunity Act, removing the exemption as it relates to students, mean that this area is likely to become even more complex.

 

Privacy Act

Under Australian Privacy Laws, an individual has the right to access their records and ask for them to be corrected if they are not accurate or up to date. If the school does not agree with the correction, they are not obliged to change these records, but they must advise the student of the reason for rejecting the request and attach a statement to the record to indicate that the student has requested a correction and what that correction is.

The Commonwealth Privacy Act does not distinguish between adults and non-adults, but the Office of the Australian Information Commissioner, the national privacy regulator, advises that it is a matter of the young person having a “capacity to consent”. Where the student is deemed to have that capacity, they are entitled to use the provisions of the Privacy Act without recourse to their parents/guardians.

 

A Way Forward

As made clear in this article, there is no straightforward answer to how a school should respond if asked to change a student’s gender on their school records. The answer will depend on the specific circumstances, including:

  • the student’s wellbeing
  • the age and the level of maturity of the student
  • whether the student has commenced any legal processes in relation to changing their gender
  • whether the student wants primary legal documents changed
  • whether the student’s parents/guardians are supportive and willing to provide consent.

The school must also factor in anti-discrimination laws, both in their state or territory and the Commonwealth, as well as privacy laws.

Here are some tips to help manage this issue:

  • Stay informed. It is important that schools understand the issues affecting students in the LGBTIQA+ community.
  • The school’s duty of care for the student is paramount, and the wellbeing of students should be considered above all else. Ensure that the school has support mechanisms for students (e.g. access to gender identity counsellors).
  • Get help if needed. Issues around parent/guardian consent can create complexities. If unsure, seek legal advice before making any decisions.
  • Prepare and share your policy. Ensure that you have a clear, LGBTIQA+ student policy and enrolment policy that does not breach anti-discrimination legislation. Ensure that the key elements of these policies are communicated in plain English to the school community.
  • Have a communications plan ready. Gender identity issues can attract media attention. Be prepared to communicate if that attention turns your way. And in your planning be sure to give care and attention to the privacy of the student and their family.

 

Discrimination Laws in Each State and Territory:

 

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About the Author

Alyssa Kritikos

Alyssa is a Senior Legal Content Associate at CompliSpace. Having graduate from Macquarie University in Sydney, she holds a double bachelor’s degree in Commerce and Law. She has experience working as a lawyer in both private practice and in-house roles with a focus on employment and privacy laws.

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