6.1 Access and safety for all
The Equality Act promotes access to facilities, the curriculum and extra-curricular opportunities to all children and young people. Education settings should ensure that the welfare of trans pupils is included in exactly the same way.
Education settings will come across children and young people who are at various stages of exploring their identities or transitioning. This includes but isn’t limited to those who are just coming out as trans, those who have come out as non-binary, those who have socially transitioned either partly or fully and those who are exploring their gender identity with no fixed pathway. Therefore, the information which follows will be relevant to some children and young people and not others. Education settings should consider the guidance below and apply on an individual, case by case basis and seek advice if needed.
As part of ongoing work to ensure safe learning environments, settings should carry out a range of activities that ensure respectful behaviour by all pupils and students in all areas of the school building, including toilets and changing rooms. This will include, as part of a settings’ ongoing anti-bullying work the encouragement to all pupils and students to report any areas of the building where they feel unsafe. Any child or young person acting inappropriately in toilets or changing rooms should be challenged or sanctioned in line with the school’s behaviour policy.
The toolkit is not promoting the removal of single sex spaces but encourages a mixed model of provision, where possible. Enabling access to single sex provision in schools such as toilets, changing rooms, residential accommodation and competitive sport refers only to trans children and young people who have taken ‘steps to live in the opposite gender’. Equality Act; Advice for Schools (2018) page 17.
The Equality Act allows providers to offer single-sex services that exclude transgender people if it is proportionate to do so and it achieves a legitimate aim.
The Equality & Human Rights Commission explains the significant requirements to prove objective justification (Equality and Human Rights Commission):
- the aim must be a real, objective consideration, and not in itself discriminatory - for example, ensuring the health and safety of others would be a legitimate aim
- if the aim is simply to reduce costs because it is cheaper to discriminate, this will not be legitimate
- working out whether the means is ‘proportionate’ is a balancing exercise: does the importance of the aim outweigh any discriminatory effects of the unfavourable treatment?
- there must be no alternative measures available that would meet the aim without too much difficulty and would avoid such a discriminatory effect: if proportionate alternative steps could have been taken, there is unlikely to be a good reason for the policy or age-based rule.
Staff are best placed to evaluate how to balance any competing sensitivities whilst actively supporting the welfare of trans students. Brighton & Hove City Council has seen no evidence either in research or in the city’s schools that a trans child or young person (as defined under the gender assignment definition in the Equality Act) in a single sex facility presents any more of a threat to another child or young person than any member of their peer group.
It is recommended that schools carry out equality impact assessments when making changes to provision with the purpose of reducing or preventing any potential negative impacts of changes. See Appendix 5 for an example format.
For more advice on individual cases, showing due regard and undertaking Equality Impact Assessments please contact the Equality and Anti-Bullying Service TransToolkit@brighton-hove.gov.uk
Reg 4(2) of the School Premises (England) Regulations 2012 provides that
‘Separate toilet facilities for boys and girls aged 8 years or over must be provided except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time’.
The use of toilet facilities by trans children and young people should be assessed on a case-by-case basis in discussion with the individual child or young person. Brighton & Hove recommends that in making that assessment schools should consider the fact that for some trans children accessing the toilet which corresponds to their gender identity can be extremely important. There are health risks such as urinary infections for children unable to access toilets during the school day. We would therefore encourage schools to enable this wherever possible if asked for.
Anecdotal feedback from trans children and young people is that many will opt for a gender-neutral toilet for fear of bullying or harassment rather than a large multi occupancy single sex facility. Single sex toilets can also cause issues for children and young people who do not identify with the gender binary of boy or girl.
Ideally, where funding and space allows; educational settings should provide pupils and students with access to a mixture of toilets includes:
- single sex toilets
- blocks of floor to ceiling cubicle toilets that can be used by all, with bins for menstrual products in each cubicle (‘toilets for everyone’)
- accessible toilets.
6.3 Changing rooms
Regulation 4 (4) of the School Premises (England) Regulations 2012 provides that:
‘Suitable changing accommodation and showers must be provided for pupils aged 11 years or over at the start of the school year who receive physical education’.
The Equality and Human Rights Commission further states:
“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”.
The use of changing rooms by trans children and young people should be assessed on a case-by-case basis in discussion with the individual child or young person. The goal should be to maximise social integration and promote an equal opportunity to participate in physical education classes and sports, ensuring safety and comfort.
Brighton & Hove recommends that in making an assessment, schools should consider the fact that for trans children accessing the changing room which corresponds to their gender identity can be extremely important. We would therefore encourage schools to enable this wherever possible.
Any pupil or student who has a need or desire for increased privacy, regardless of the underlying reason, should be provided with a reasonable alternative changing area such as the use of a private area or with a separate time to change. Any alternative arrangement should be provided in a way that protects the child or young person’s ability to keep their trans status confidential.
6.4 PE and sports
All children and young people have the right to take part in sports and physical education in education settings. Trans children and young people (who fit the gender reassignment protected characteristic under Equality Act and have taken ‘steps to live in the opposite gender’) should be able to take part in lessons or teams in accordance with their gender identity as appropriate to their age, stage of development and guidance from sporting bodies.
Schools and educational settings should avoid stereotyping sports as being for one sex or the other. PE teachers, as part of their usual practice, should take account of the range of size, build and ability of individuals in the class and differentiate accordingly to keep all pupils and students safe. Some activities may be segregated for example providing opportunities for girls to develop their football skills.
There should be few issues at primary level where most lessons will be mixed sex. At secondary level lessons are more often segregated by sex. The issue of physical risk within certain sports should be managed properly within the lesson context rather than by preventing young trans people from participating, which would be discriminatory.
The exception to this is where their exclusion is ‘a proportionate means to achieve a legitimate aim’ (Equality and Human Rights Commission) in that specific case, see section 6.1.
It is unlikely that pre-puberty there would be any issues with a trans child competing and representing the school. In the case of competitive secondary school sports, schools may need to seek advice from the relevant sporting body.
The handling of changing facilities at an ‘away game’ would also have to be
sensitively managed. Staff should try and ensure there is appropriate sensitive provision available.
In relation to activities such as swimming, the trans child or young person may want to wear swimwear that differs from their peers. Please see section 6.6.
6.5 Residential trips
Brighton & Hove recommends that as far as possible trans children and young people should be supported to be able to stay in residential accommodation appropriate to their gender identity.
However, discussion should be had with the trans child or young person, and their parents prior to residential trips to firstly identify what the trans child or young person wants and needs, and how this can be accommodated in discussion with appropriate others including relevant friendship groups in a way in which confidentiality is protected. Risk assessments can be carried out prior to residential trips in order to make reasonable adjustments which would enable the participation of trans children and young people.
Some trans pupils and students may choose to use different kinds of undergarments to support them in feeling comfortable in their gender identity. Therefore, privacy on residentials and in changing rooms will be of key importance to them. Trans young people should be encouraged to avoid constricting bandages or inflexible tape that may be injurious to their health, and to access specialist advice from responsible sources that understand their needs. If there are concerns that the young person is engaging in a practice which is causing injury this may need to be escalated with empathy and understanding. Gendered Intelligence has produced guidance about trans inclusive residentials, which may be useful to education settings.
Prior to residentials, educational settings will want to make clear their expectations to all children and young people about how they support and treat each other.
When planning overseas trips, schools should consider and investigate the laws regarding trans communities in countries considered for school visits. The International Lesbian and Gay Association (ILGA) have information on their website about countries where trans individuals may be at risk. In addition, legal documentation such as the child or young person’s passport may not have been changed to the name and/or gender they are using. This will need to be handled sensitively by the leaders of the trip.
6.6 Uniform and dress
Having a non-gendered school uniform list would be supportive to all pupils and students and particularly those who express their gender differently to stereotypes and those who are trans and non-binary. By providing a choice of approved items of uniform and allowing children and young people to choose what they wear, schools will allow for regulated structure and remain inclusive. Most schools in Brighton & Hove already have this in place.
Staff training is recommended to ensure that all staff understand what it means to be trans, non-binary and gender exploring and that children and young people express their gender in a range of ways that are not connected with being trans. PSHE programmes will be challenging gender stereotypical ideas that to be a woman or a man you have to look a certain way.
Trans and non-binary children and young people must be able to dress in a manner consistent with their gender identity. Beginning to dress in the clothes associated with one’s gender identity can be a big step and potentially daunting. Care must be taken to ensure that trans children and young people are supported fully during this time as it may be a very visual representation of the transition process.
Be aware that some pupils with SEND whose needs mean they have support from a Personal Assistant, can feel a loss of privacy at having to come out to them before people of their choosing or before they are ready to e.g. due to relying on their assistant for what clothes they wear. The pupil may wish to speak to someone else about their needs and identity.
6.7 Name and pronoun changes
Some trans children and young people may wish to change the name they are known by and their pronoun (for example. he, she, they). Often this will be supported by and in communication with parents and carers, if this is not the case, the school will need to offer additional support and if necessary, seek further advice. See section 5.2.
Respecting a child or young person’s request to change name and pronoun is a pivotal part of supporting and validating their identity as evidenced in research. Some people who consider their gender identity as not fitting into a binary (boy/girl or man/woman) and may use gender neutral pronouns (for example, ‘they’ or ‘zie’).
The use of pronouns and gender identifiers are important to children and young people. When health care professionals use identifiers inappropriately, or don’t ask children and young people in the first place, they lose trust in those caring for them.
RCPH Supporting LGBTQ+ children and young people.
It is important to consistently use correct pronouns and names to protect a child or young person’s confidentiality and to not ‘out’ them in ways that may be unsafe and exposing. If a mistake is made with a name or pronoun then this can be apologised for.
Where staff become aware that an adult or child is deliberately calling someone by their name registered at birth, after they have changed their name, or misgendering them (using the wrong pronoun or referring to them as their previous name) then appropriate challenge and if necessary action should be made with reference to the settings equality and anti-bullying policies.
Staff will need to work with the trans child or young person, to agree how to communicate any changes to names and pronouns to their wider staff team.
School Data Recording; name and gender
If a trans pupil or student wishes to have their personal data recognised on school systems, this should be supported and will feed on to letters home, reports, bus pass information etc.
The pupil’s full legal surname should be recorded, as the school believes it to be. Schools are not expected to have verified this from a birth certificate or other legal document.
Forename and deed poll
The law is clear that a child over the age of 16 has the right to change their legal name by deed poll without the consent of those with parental responsibility (PR). For a child or young person under 16 consent from all those with parental responsibility is required to legally change the name. Where there is an absent parent or lack of parental support this will hinder the process.
If the pupil does not legally change their name schools can still support their wishes to be known by a different name if it is considered in their best interests to do so. The Department for Education guidance is that a formal name change is not required, for the school to refer to the young person by a new forename and pronoun. The new name should be recorded as the pupil’s ‘preferred name’. The same goes for the use of a preferred pronoun. However, the register should still show the pupil’s original, legal name.
Although some young people may feel that they want to change their name by deed poll, others may not feel that this is a step that they are ready or able to take. This will mean that although they may have established themselves within the school under a chosen name, they will have to use their birth name when filling in exam documentation.
This could potentially be a source of distress for that individual and care should be taken by staff to support the young person so that it does not invalidate their identity. Staff should remain sensitive and supportive during such times.
There may be sensitivities for looked after children in relation to making name changes.
Legal name field and exams
To make changes to the child or young person’s Legal Name field, evidence is required. The issuers of documents of ‘value’ (such as passports, driving licences, degree/exam certificates) have a duty to prevent fraud and typically ask for evidence of name change as part of that duty. This evidence is generally a deed poll, described above.
Theoretically young people can be entered under any name with an exam board and it is possible for exam certificates to be issued in the name asked for, but this will require careful thought. Schools and colleges should ensure a strategy is agreed with the young person and their parents and carers, then agreed with the various exam boards prior to starting accredited courses, as some exams may be sat in Year 10 and the length of time the process of re-registering may take has to be considered. Exam boards may be experienced in working with trans children and young people and be able to guide the school or college through the process. It is possible to change names on exam certificates but there may be a charge for this.
Once an exam result is accredited it will be linked with a Unique Pupil Number (UPN) or Unique Learner Number (ULN) which existed in the school census information submitted in January of the exam year. UPNs and ULNs are only linked with legal names (Legal Name refers to the name in which a pupil or student arrives in education for the first time; this is often the name on their birth certificate), not preferred names. Schools need to be aware that the DfE analysis of school performance may still present the young person in the gender registered by their UPN.
- When sending data about the pupil or student to third parties always ensure you are sending the correct information
- Ensure that the selected chosen name is used on exam certificates before being sent to pupils and students
- Engage with the pupil or student as well as their parents and guardians to agree a strategy for presenting the correct information to the examination boards
- The examination officer should contact the relevant exam board to discuss
Gender and the school census
The School Census (and some school MIS systems) requires the recording of gender as male or female. This may be particularly problematic for pupils and students who identity as non-binary.
Government guidance clarifies that self-declared gender can be recorded in the Schools’ MIS and collected in the School Census:
Gender should be self-declared and recorded according to the wishes of the parent and / or pupil. Individuals are free to change the way their gender is recorded.
Taken from Complete the school census on GOV.UK.
Gender should be self-declared and recorded according to the wishes of the parent and / or pupil. Individuals are free to change the way their gender is recorded. There is no requirement from the DfE for any legal change or gender recognition certificate and it remains open for the school to amend the gender of any pupil, within their own MIS, at any time.
If a pupil does not want to be known by either gender, the DfE has advised that schools may leave the field 'blank', however LAs have fed back to the DfE that MIS systems do not allow this. For any cases where it is appropriate for the gender field to be ‘blank’ in the school census, schools should securely e-mail the details of the pupil or student to the School Data Team. The team will then manually remove the gender from the census and make an appropriate notepad entry in the DfE system (COLLECT). Academy/Free School data colleagues will need to do this themselves in COLLECT (supported by the School Data Team if required) the return will be authorised by the DfE. (DfE Forum, 2019).
Read the full census guidance.
6.8 Confidentiality and information sharing
All people, including children and young people, have a right to privacy, although that right is not absolute. Information about a pupil’s transgender status, legal name, or sex registered at birth may also constitute confidential information.
Please see sections 3.3 and 3.4 for more information.
6.9 Relationships and sex education
See section 4.7 for general guidance on an LGBT inclusive curriculum.
Some settings may very occasionally use single sex groups to support teaching about puberty for example. Trans pupils and students can access the group in line with their gender identity if they wish to. Where it is known a child or young person is trans, a trusted and trained member of staff should discuss with them which group they would like to attend.
Education settings can provide additional support via a school nurse for example so that a trans pupil or student has the opportunity to explore and get support for the puberty they may experience which may not be in line with the puberty they would like to have.
For more guidance, please go to Brighton & Hove City Council’s Relationships and Sex Education: Guidance for Educational Settings, 2015 on the BEEM website.
6.10 Work experience
Where an educational setting is considering a work experience placement for a trans student, the setting must complete a suitable assessment on the potential placement to establish if there is any risk (physical or otherwise), taking account or rights of privacy - as a general principle personal information on the young trans person must not be shared.
Schools must be sensitive to this in their planning before any trans young person is placed in any business or organisation. Careful discussion about the placement with the students and parents and carers needs to happen as early as possible to find the most suitable way forward to ensure the placement is successful.
Historically, vaccinations have been given to young people of all genders together in a large space such as a sports hall. More recently, GP surgeries provide some settings with their vaccinations at the surgery while some vaccinations are given in the education setting.
Consideration should be given to trans pupils and students if the vaccination is sex-specific, such as, a trans boy might find it very difficult to stand in a queue of girls awaiting a female-specific vaccination, or to be left behind when one gender is invited to leave class for a vaccination. Sussex Community Foundation Trust immunisation team will facilitate an individualised appointment for the young person in this case.
It should also be recognised that vaccinations are not always separated by sex (male/ female) and if it is still necessary to have mass vaccination sessions in school, then a queue for all genders could be used, as well as screens for the person receiving the vaccination be supplied to promote privacy whilst being included in the mainstream.
6.12 Dealing with the media
There have been cases where the media has shown an interest in trans pupils, students and staff. The council’s communications team (email@example.com) can advise on media queries. It is recommended that statements to the media include references to the work the setting is doing to promote inclusion and equality for all and to ensure that all pupils and students are safe from bullying and feel valued. At all stages the confidentiality of individuals should be protected.
A complaint can be made to the Independent Press Standards Organisation.
- Staff are best placed to evaluate how to balance any competing sensitivities whilst actively promoting the welfare and equalities of trans students
- List uniform without reference to gender and provide a range of swimwear options
- Trans children and young people (who fit under Equality Act definition of gender reassignment) can access facilities in line with their gender identity if they want to
- Use the name and pronoun that the trans young person is using and if a mistake is made learn and do better next time
- Wearing non gender stereotypical clothes does not mean that someone is trans
- Medical transition happens under the care of the Gender Identity Development Service
- Provide support where an official name change has not been made in preparation for exams
- A change of name by deed poll is not required to make a change to school records on school database systems such as SIMS
- Seek support if you are not sure how to support an individual and their family.