The Equality and Human Rights Commission has recently published guidance for separate and single-sex service providers, which contains helpful advice on the sex and gender reassignment provisions of the Equality Act.
The guidance is not legally binding, and it relates to all service providers, not just schools. However, the guidance will nevertheless be helpful for schools that are navigating their way through the issue of trans pupils using separate and single-sex spaces, such as boarding houses, changing rooms and toilets.
What does this mean for schools?
There are circumstances where trans individuals can lawfully be prevented from using separate and single sex spaces. However, this can only be done in circumstances where this is “a proportionate means of achieving a legitimate aim”. For schools, this means that a careful balancing exercise needs to be carried out between the impact on a trans pupil and the impact on all other pupils of the trans pupil being allowed into a single sex space. If a trans pupil is to be prevented from using a single sex space, then there must be a sufficiently good reason for this, and this needs to be carefully considered and justified on a case-by-case basis.
The guidance contains useful examples of circumstances where the EHCR considers that preventing trans individuals from using single sex spaces could be justified as a proportionate means of achieving a legitimate aim. If schools were inclined to make any such decision, then as part of their approach they would need to carefully consider potential solutions that could minimise the discriminatory effects, including considering less restrictive options.
“Treat everyone with dignity and respect”
When taking decisions, the guidance emphasises the need to treat everyone with dignity and respect, whilst considering the rights and needs of trans individuals alongside the rights and needs of other service users.
Importantly, it emphasises the need to record the evidence base and rationale for decision-making – this will form the basis of your school’s evidence that you did indeed undertake the careful balancing exercise described by the EHRC.
How Moore Barlow can help
We regularly advise schools on how to find practical solutions for allowing trans pupils to feel included and comfortable, whilst still ensuring effective safeguarding of all pupils.
Please contact us if you would like any guidance on this issue.