In a 2002 case involving the issue of the use of toilets in a workplace by a transgender person, a senior judge predicted that this would be “a problem of exceptional rarity”. This prediction has not proven true in 2022, particularly in education, where regular debate has emerged around the appropriate approach to toilet facilities in schools.

In response to parents’ concerns surrounding the increased prevalence of only “mixed-sex” toilets in schools, a change reflective of wider society, the campaign group For Women Scotland is reported as having issued a letter to all local authorities in Scotland on 10 June 2022. This letter enclosed a legal opinion from a QC, to the effect that schools must make separate provision for male and female toilets, and setting out potential claims available if this provision is not made.

Transgender students: what schools need to know about the law

According to the Gender Identity Research and Education Society, non-traditional gender identities could constitute up to 10 per cent of our society, and, consequently, our workforce and/or student population. This article looks at the current legal issues surrounding transgender and non-binary students and sources of assistance available.

The law on gender recognition

Individuals who propose to undergo, are undergoing or have undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of sex, are protected under the provisions of the Equality Act 2010 relating to “gender reassignment”.

In considering the legal protection of individuals under the Equality Act, arguments that “gender identity” should be included as a protected characteristic alongside gender reassignment have also been advanced on the basis that those who are gender fluid or non-binary are not covered by the current provisions.

The Gender Recognition Act 2004 (GRA) allows transgender adults to apply to the Gender Recognition Panel to receive a Gender Recognition Certificate (GRC). Upon receipt of a GRC, that individual is considered legally to be of their acquired gender. To obtain a GRC, an applicant must be over 18 years old; provide evidence of a medical diagnosis of gender dysphoria; have lived in their acquired gender for two years; and be willing to make a statutory declaration that they will continue to do so. There is no requirement that they are taking any active steps to undergo gender reassignment surgery or hormone treatment.

However, there have been calls from various groups for the law to be changed to a system of self-identification of gender, removing the requirement for medical diagnosis. Broadly, their argument is that the law as it stands is outdated; unduly onerous and humiliating for applicants; and does not take account of, or protect, under-18s and gender fluid or non-binary people.

In response to these concerns, the UK government and the Scottish government conducted separate consultations on reforming the process for achieving legal gender recognition. In doing so, they have come to different conclusions.

The legal question of self-declaration

The UK government has decided not to introduce a self-declaration process for legal gender recognition in England and Wales, stating that it believed the balance struck in the GRA was correct.

The Scottish government intends to change the process for achieving legal gender recognition in Scotland, believing this to be more progressive and reflective of modern society. On 3 March 2022, it introduced the Gender Recognition Reform (Scotland) Bill. The Bill seeks to simplify the process of obtaining a GRC.

Among other things, it will:

• Remove the requirement for a medical diagnosis and evidence.
• Reduce the required time spent living as the acquired gender from two years to three months (with a further three months of reflection).
• Reduce the minimum age of applicants from 18 to 16.
• Remove powers to introduce an application fee.
• Provide for automatic recognition of a GRC obtained in the rest of the UK and overseas.

The Bill is currently at stage one of the parliamentary process. Work on it was halted during Covid, but since its introduction in March, it has been making steady progress. If this momentum continues, it is likely we will see it in its final form within the next year.

Where both the UK and Scottish governments aligned was in respect of their conclusion that the Act should not be amended to extend legal gender recognition to non-binary people. The Scottish government has, however, committed to developing an “action plan by spring 2023 to improve non-binary equality and wellbeing”.

Legal protections for gender fluid and non-binary people

At present, the Equality Act does not recognise “gender identity” as distinct from “gender reassignment” as a protected characteristic. The case for including gender identity has been raised at various points throughout the lifespan of the Act. The UK government’s position remains that people who are gender fluid or non-binary would be able to rely on the protections against direct discrimination and harassment, on the grounds of either sex or gender reassignment, since they are defined in such a way as to cover acts based on misperception.

The issue came before an employment tribunal in the 2020 case of Taylor v Jaguar Land Rover. The tribunal determined that protection of non-binary and gender fluid people fell under the “gender reassignment” category in the 2010 Act. This was the first case of its kind to make such a finding and it was likely to have been heavily influenced by the claimant identifying as a “non-binary transgender engineer”. This is not a binding decision and it also remains to be seen whether or not a non-binary or gender fluid individual who does not also identify as transgender would be protected.

Guidance for schools

In August 2021, the Scottish government issued guidance on “supporting transgender young people in schools”, which addressed circumstances likely to arise in an educational setting. The guidance is stated as being equally applicable to non-binary students. Areas of consideration include toilets and changing facilities; social dancing; PE and sports; and school trips.

A welcome inclusion in the guidance is how to respond to a request by a pupil that their name be changed. This appears to be a reasonably common issue encountered, particularly by guidance teachers.

However, there has been a recent backlash from some parents and certain organisations surrounding the safety of children, more often female children, particularly in relation to gender-neutral toilets and school sports, as shown by the For Women Scotland communication to local authorities.

The guidance says, in relation to school toilets, that schools should consider offering additional gender-neutral facilities, taking account of the additional privacy requirements of such facilities; for example, enclosed cubicles. The guidance suggests that gender-neutral facilities reduce bullying and vandalism and, on a personal level, alleviate some anxiety around having to use a bathroom that does not accord with your gender identity, or the concern of having someone who does not share the same biological sex as you in a fundamentally private space. It does not exclude keeping single-sex toilets, but encourages affording a choice to pupils.

The guidance provides specific steering for various circumstances, but more broadly encourages a culture of open communication, respect and safety. If schools or teachers are concerned about the impact of a measure they are seeking to implement, they are encouraged to sensitively ask those whom it affects.

The proposed changes in the Gender Recognition Reform Bill and extension of protection under the Equality Act provide greater clarity on rights and processes from a legal perspective. However, the more sensitive and practical day-to-day issues, many of which affect schools in Scotland, are likely to remain, but may be better managed with application of the August 2021 guidance.

Lorna Davis is a partner and Claire Fowler is a trainee solicitor in the employment team at law firm Harper Macleod