Guide to trans children’s rights at school

The advice has been written by Dan Squires QC, a leading education and discrimination law expert, and focuses on the obligations set out in the Equality Act 2010. 

This legislation prohibits schools from discriminating against their pupils, including on the basis of protected characteristics such as ‘sex’ and ‘gender reassignment’, he says.

• Leadership: Trans, non-binary and gender-questioning employees

• Analysis: Better gender identity support

The protected characteristic of ‘gender reassignment’ includes anyone proposing to undergo, undergoing, or having undergone a process of reassigning their sex, by changing either the physiological or other attributes of sex. It is not confined to people who have undergone surgical transition or who have obtained a Gender Recognition Certificate. 

The protected characteristic of ‘gender reassignment’ is also likely to cover non-binary and genderfluid identities.

The full advice is available here.

A summary of the advice includes:

1. Can a mixed school refuse to admit or exclude a child because they are trans?  

No, they can’t; to do so would be unlawful discrimination on the basis of gender reassignment. 

2. Is a school required, as a matter of law, to treat a child as being of the gender with which they identify? If so, what are the main practical components of this obligation? If not, what obligations, if any, does the school have to that child? 

A school isn’t required to treat a child as being of the gender with which they identify in all situations, but must be careful not to implement policies which unfairly discriminate against trans students. 

A school cannot prevent trans students from benefiting from the same policies as other pupils just because they are trans. For example, if there is a practice where children can be referred to in class by a name other than the one under which they are registered, it would be direct discrimination and unlawful if this was not extended to a trans child who wanted to be known by a new name.

Even policies or practices that are not directly about trans children may be unlawful if they disproportionately disadvantage them. For example, a school may have a uniform policy which requires pupils to wear clothing that corresponds with the sex they are registered with at the school. This might represent a disadvantage for trans students, who may wish to wear the clothing associated with the gender they identify with. The school would have to identify a legitimate aim and be able to demonstrate why it was proportionate to prevent trans children from wearing clothes in line with their gender identity.

Schools should review their policies and practices to consider whether any of them might disproportionately impact trans students. A school should identify the aim of each policy or practice, and ask itself whether implementing it is really necessary to achieve that aim, given the impact it might have on trans students. Alternative or amended policies should be explored, to see whether the underlying aim might be achieved in a way which doesn’t have the same negative impact on trans students. 

3. Can a girls’ (or boys’) school admit a trans girl (or boy)? If it does so, will it lose its single-sex status?  

There aren’t any rules or official guidance which deals precisely with this issue. 

However, single-sex schools are able to admit pupils of the opposite legal sex in exceptional circumstances without losing their single-sex status. A recognised example of this is a single-sex school that admits children of members of staff irrespective of sex. There is no obvious reason why this exception could not be used by schools to allow trans children to attend single-sex schools which align with their gender identity rather than their legal sex.

4. Can a girls’ (or boys’) school exclude a trans boy (or girl) who is a current pupil on the basis that they are a girls’ (or boys’) school and the pupil identifies as male (or female)?

No; to do so would be unlawful. 

5. Can a girls’ (or boys’) school refuse to admit a trans boy (or girl) on the basis that they are a girls’ (or boys’) school and the pupil identifies as male (or female)?

No; again, this would be discriminatory. 

6. Can a girls’ (or boys’) school refuse to consider admitting a trans girl (or boy) on the basis that she (or he) is legally male (or female)? 

Single-sex schools are allowed to discriminate on grounds of sex in relation to the children they admit as pupils. However, single-sex schools are also permitted, as an exception, to allow children of the opposite legal sex to become pupils (see question 3).

The issue of whether a school is under an obligation to consider admitting a trans child under this exception is not something which has been clarified by the courts

However, trans children are more likely to want to attend an opposite-sex single-sex school than their cisgender peers and so are likely to be disproportionately disadvantaged by a refusal to consider admitting them. On that basis, it will be likely that a school will have to demonstrate an objective justification for having such a policy. If they cannot establish this, the school’s decision would be unlawful.