What is new in the EHRC guidance?

The Equality and Human Rights Commission has today released updated technical guidance on the Equality Act for schools in England and in Scotland. We look at what has changed.

Clearer definitions: no child under 18 can change sex

The new guidance is more careful and precise about the legal definitions of sex and gender reassignment. The old guidance said:

“A person’s sex refers to the fact that he or she is male or female. In relation to a group of people, it refers to either men and/or boys or women and/or girls.”

The new guidance says:

“A person’s sex refers to the fact that he or she is a male or female of any age.

‘Sex’ is understood as binary – being male or female – with a person’s legal sex being determined by what is recorded on their birth certificate, based on biological sex. A trans person aged 18 or over can change their legal sex by obtaining a Gender Recognition Certificate through procedures set out in the Gender Recognition Act 2004.”

On gender reassignment the old guidance said:

“Gender reassignment is a personal process (rather than a medical process) that involves a person moving away from his or her birth sex to his or her preferred gender and thus expressing that gender in a way that differs from, or is inconsistent with, the physical sex with which he or she was born.

This personal process may include undergoing medical procedures or, as is more likely for school pupils, it may simply include choosing to dress in a different way as part of the personal process of change.

A person will be protected because of gender reassignment once:

• he or she makes his or her intention known to someone, regardless of who this is (whether it is someone at school or at home, or someone such as a doctor);
• he or she has proposed to undergo gender reassignment, even if he or she takes no further steps or decides to stop later on;
• there is manifestation of an intention to undergo gender reassignment, even if he or she has not reached an irrevocable decision;
• he or she starts or continues to dress, behave or live (full-time or part-time) according to the gender with which he or she identifies as a person;
• he or she undergoes treatment related to gender reassignment, such as surgery or hormone therapy; or
• he or she has received gender recognition under the Gender Recognition Act 2004.

It does not matter which of these applies to a person for him or her to be protected because of the characteristic of gender reassignment.

This Guidance uses the term ‘transsexual person’ to refer to someone who has the protected characteristic of gender reassignment.”

The new guidance says:

“Gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign a person’s sex.

To be protected from gender reassignment discrimination, a person does not need to have undergone any medical treatment or surgery to change from their birth sex to their preferred gender.

A person can be at any stage in the transition process, from proposing to reassign sex, undergoing a process of reassignment, or having completed it. It does not matter whether or not a person has applied for or obtained a Gender Recognition Certificate, which is the legal document that enables trans people aged 18 and over to have their acquired gender recognised as their legal sex. 

A child can have the protected characteristic of gender reassignment.”

This is a more careful explanation of the law. It does not assume that a child can elect to “dress, behave or live (full-time or part-time) according to the gender with which he or she identifies as a person” while at school.

Separate-sex facilities clarified

The section on separate-sex facilities has been clarified. The old guidance said:

“Gender segregation is permitted for a few specifically defined purposes. For example there is an exemption permitting gender segregation in certain situations where it is necessary to preserve privacy and decency. However, unless a specific exemption applies, segregation connected to gender will be unlawful.”

The new guidance says:

“Sex segregation is permitted in certain situations, such as where it is necessary and appropriate to preserve privacy and decency. The law requires schools to provide single sex toilet facilities for children over eight and single sex changing facilities for children over 11. These may be either in sex-segregated communal facilities or in single-user lockable rooms.”

This is helpful, as combined with the clarified definition of sex it makes clear that boys (male) use the boys’ facilities and girls (female) use the girls’ facilities.

“Misgendering” example removed

The EHRC has removed both a question and the answer from its FAQ section:

“A previously female pupil has started to live as a boy and has adopted a male name. Does the school have to use this name and refer to the pupil as a boy?”

Not using the pupil’s chosen name merely because the pupil has changed gender would be direct gender reassignment discrimination. Not referring to this pupil as a boy would also result in direct gender reassignment discrimination.

This deletion seems to be an admission that it would not be direct gender-reassignment discrimination to refuse to refer to a female pupil as a boy (so called “misgendering”). Nor does the EHRC try to raise the spectre of indirect discrimination here, presumably recognising that referring to boys as boys and girls as girls is not indirect gender-reassignment discrimination.

An inexplicable change

In another example:

“A school excludes a pupil because he has declared his intention to undergo gender reassignment and is beginning to present in the style of the opposite sex. This would be direct gender reassignment discrimination,”

the EHRC has changed “a school” to “a co-educational school”.

This seems entirely unnecessary. A single-sex school that excluded a pupil who expressed an intention to undergo gender reassignment would also be undertaking direct gender-reassignment discrimination. (The school is not required to pretend that the child has changed sex or to treat them differently, but it should not exclude them for having the notion.)

Two unchanged cases

Two cases that remain unchanged in the guidance are:

“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.”

“A school fails to provide appropriate changing facilities for a transsexual pupil and insists that the pupil uses the boys’ changing room even though she is now living as a girl. This could be indirect gender reassignment discrimination unless it can be objectively justified. A suitable alternative might be to allow the pupil to use private changing facilities, such as the staff changing room or another suitable space.”

We think these two example remain unhelpful. In the first case the example of a member of staff repeatedly telling a child they look silly could indeed be direct discrimination. What the example does not explain is whether the child is complying with uniform rules (in which case the member of staff does not need to say anything), or whether they are breaching uniform rules (in which case the member of staff should treat this in the normal way, without insults). Some schools have separate uniform rules for boys and girls, and others have a single uniform code.

The second example suggests it is not “appropriate” for a boy who identifies as a girl to use the boys’ changing room. But this would in fact be direct gender-reassignment discrimination. Schools are required to provide sex-segregated facilities. While a unisex alternative might sometimes be able to be found, at other times the only practical option may be the boys’ or the girls’, and the school should be clear that it is always appropriate for gender-non-conforming boys to use the boys’ facilities and gender-non-conforming girls to use the girls’ facilities, without being bullied, harassed or excluded.

Overall the guidance has moved in a helpful direction, but is still confusing in parts. It is now for the Department for Education to fill in the gaps, taking into account all the legal frameworks and responsibilities that apply to schools in addition to the Equality Act. It will need to spell out clearly whether it is possible for a boy to “live as a girl” or a girl to “live as a boy” at school, in relation to any school rules and policies.