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Mermaids’ Policy team looks at recent changes to the EHRC’s technical guidance for how schools should implement the Equality Act, and what it might mean for trans youth.

What have the Equality and Human Rights Commission (EHRC) said?

The EHRC have recently made changes to their technical guidance for how schools in England should implement the Equality Act 2010. 

Robin Moira White, a barrister specialising in discrimination, has disputed its interpretation of existing equalities law. 

It is important to note that the law has not changed, nor is this the long-awaited trans schools guidance promised by the UK Government.

In the absence of supportive guidance in England, schools may wish to look at trans-inclusive toolkits produced by the Scottish Government and Brighton & Hove City Council for examples of best practice. 

Is it okay to misgender trans pupils?

The EHRC removed an example from the guidance explaining that a school refusing to use a trans pupil’s chosen name would be discriminatory. Despite misleading reports, misgendering a trans pupil remains unacceptable, and the guidance still includes examples, including the one below, which suggest that refusing to use a trans young person’s chosen name and pronouns is not lawful:

“A member of school staff repeatedly tells a transsexual pupil that ‘he’ should not dress like a girl and that ‘he’ looks silly, which causes the pupil great distress. This would not be covered by the harassment provisions, because it is related to gender reassignment, but could constitute direct discrimination on the grounds of gender reassignment.” (page 65)

All young people try out different ways of presenting as they grow up. This should not be different for trans young people, who deserve the basic dignity of being listened to and respected.

Can trans young people use facilities matching their gender?

Under equality law, trans people can only be excluded from single-sex spaces where it is considered a “proportionate means of achieving a legitimate aim”.

Robin Moira White writes that lawfully excluding trans pupils would “seem very unlikely where a pupil has declared themselves trans and so their circumstances are known to the school and there is no evidence of inappropriate behaviour in the use of toilets or changing rooms.”

In Brighton & Hove, where inclusive guidance has been followed by schools since 2013, trans young people have successfully been supported to access single-sex spaces in line with their gender identity without issue. 

Trans young people face disproportionate levels of bullying and harassment with toilets and changing rooms provoking significant anxiety. Schools have a duty to provide a supportive and inclusive environment for all students, including facilities that enable trans young people to feel comfortable and be healthy. 

How can I support trans young people at school?

The rhetoric from the Government toward trans children and young people seeks to deny their very existence. Their proposed approach to schools’ guidance would be a new Section 28 for trans pupils, if enforced.

While we continue to await publication of draft guidance from the Department of Education, our advice remains that schools continue to act within the law to uphold the safety of trans youth. 

Other ways you can get involved:

➡️ Write to your MP using our tool, asking they only support guidance that protects trans young people.

➡️ Share our tool with your networks. 

➡️ Consult The Good Law Project’s expert legal advice for trans pupils and their parents.

➡️ Make a donation and support our schools’ work.

Today (10 August 2022), Suella Braverman QC MP, the Attorney General, made a speech for the Policy Exchange think tank on the affirmation of trans, non-binary and gender diverse children in school.

The contents of Braverman’s speech do not reflect our understanding of the Equality Act 2010 or the realities of being a trans child in schools. Her speech is not legally binding on schools and does not mark a change in school’s duties toward trans children in their care. 

What does the Equality Act say?

Under the Equality Act 2010, people with the characteristic of “gender reassignment” are protected from discrimination, harassment and victimisation. This captures anyone who is trans, regardless of medical intervention.

Schools may also be subject to a Public Sector Equality Duty under the Equality Act 2010, which requires them to advance equality of opportunity, foster good relations and have due regard to the need to minimise disadvantages suffered by persons who share a relevant protected characteristic.

As we understand it, this means that it is contrary to the Equality Act if schools refuse to allow a child to wear the uniform that matches their gender identity or use a single-sex facility that matches their gender identity.

There is a high bar for the exclusion of trans children from sports where their inclusion may undermine safety or fairness. We believe that access to sport is a fundamental part of childhood, teaching young people important life lessons about teamwork, navigating new environments, building confidence and making friends, and has numerous physical and emotional benefits that make us who we are. To exclude trans, non-binary and gender-diverse young people from such experiences is to deny them a childhood. 

The benefits of inclusion

Using the correct pronouns (e.g. he, she, they) of a child can be an important and simple way to create an inclusive, respectful school environment. Studies show the real impact this can have on a trans or gender-diverse person, including, for example, a 71% reduction of symptoms of depression (Russell et al, Journal of Adolescent Health 63 (2018): “Chosen Name Use Is Linked to Reduced Depressive Symptoms, Suicidal Ideation, and Suicidal Behavior Among Transgender Youth”).

A child being trans does not make them a safeguarding risk to other children and affirming and supporting trans children does not hurt other children in their peer group. Furthermore, the Equality Act makes clear that medical intervention or diagnosis is not required for a child to use the name or pronouns of their choice.

Our view

We do not believe that providing a supportive and inclusive environment disadvantages anyone. Trans rights are not to the exclusion of others’ rights but in addition to the benefits and freedoms enjoyed by the majority.

Education is a fundamental human right and trans children need support and protection to ensure the same standard of education as everyone else, rather than additional barriers proposed by some. We urge schools to be agile and supportive and take extra measures to ensure that trans children can enjoy the same opportunities as everyone else. 

If something happens at your school and you need support, contact [email protected]. We also work with schools to help them strive to be as inclusive as possible. If you’re interested in speaking to our training team, please email [email protected].