Legal issues when dealing with gender identity issues in schools

Legal issues when dealing with gender identity issues in schools

NHS England’s gender identity development service revealed it is receiving three times the referrals it did in 2014-2015.

Schools should be mindful that issues of gender identity may arise in relation to pupils (including applicants) and also teachers, non-teaching staff and governors.

This can be a complicated area for schools and one which may also link to mental health issues for the individual concerned. Many people found questioning their gender identity may be feeling distressed, anxious and suffer with low self-esteem. 

In order to best support these individuals and their wellbeing, schools should encourage a culture of openness and inclusiveness and should ensure that they have clear procedures for responding to any disclosures made regarding gender identity.

Being aware of possible discrimination

Schools need to be aware of the risks of unlawful discrimination if the wrong action is taken (this may include inaction). Schools should not discriminate against an individual because of any of the protected characteristics listed in the Equality Act 2010. These include sex, gender reassignment and sexual orientation.

The Equality Act states that a person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiology or other attributes of sex.

The GEO guide makes it clear that a person can change gender without any medical intervention and medical processes are not essential to transitioning. It may not always be apparently obvious if someone has this protected characteristic.

Training in this area is recommended. Schools can be held vicariously liable for the actions of their employees, and even other third parties, if they fail to take adequate steps to prevent unlawful discrimination.

Data protection

As part of considering its procedures in supporting those who may be questioning their gender identity, schools should consider how personal data will be processed in light of the General Data Protection Regulation and Data Protection Act 2018.

Personal data held about an individual which relates to their health, sex life or sexual orientation will be special category personal data and should be treated with particular care. Schools should be clear on how to process special category data and how such information is kept secure.

We are now a year on from the implementation of the GDPR and now is a good time to revisit your policies and consider whether they remain fit for purpose.