When a child or young person exhibits signs or has the courage to express that their sex at birth does not match their gender they require acceptance, support and adjustments. Even with the right support, their journey to adulthood is likely to be profoundly challenging. Just over half of these children experience transphobic bullying with one in four young trans people having attempted suicide and 72% having thought about it.
The education system was designed with the cisgendered child in mind, leaving those who are transgender marginalised. My role as an education lawyer is to ‘square the circle’ to encourage or require schools to create the conditions in which marginalised children and young people can be brought in from the cold and are free to be themselves and get on with the business of learning. In some recent cases we have been able to make a real difference to a transgender child’s education and to find solutions in some truly distressing situations.
We were instructed by the mother of a nine year-old pupil identified as male at birth whose gender identity was non-binary (someone whose gender identity falls outside the gender binary). They were unable to use school toilets or attend swimming, due to single-sex changing facilities or PE. They were also experiencing peer bullying and staff hostility including a refusal to use gender neutral pronouns and insisting on gender segregation e.g. for lining up to go into class and PE. The child was experiencing significant anxiety and distress, school refusal and was under the care of CAMHS in relation to suicidal ideation. The parents tried to work with the school but drew the line at a PE teacher threatening to take the child to the school nurse to examine their genitals. We were able to secure reasonable adjustments including use of unisex disabled toilets and changing facilities, staff training and required use of gender neutral pronouns by all staff as well as counselling support for the child through Equality Act based representations relying on disability on the basis of gender dysphoria, I am delighted to say the child was successfully reintegrated.
In another case, we acted for the parents of a transgender girl also diagnosed with autism and separation anxiety whose previous school placement had broken down. We applied to the local authority for education, health and care assessment as the parents’ previous request had been declined. The local authority conducted the EHC assessment and, through negotiation, an EHC plan was named fully funding a trans-friendly specialist independent school for cognitively able children with autism and social, emotional and mental health needs.
We were instructed by the parent of a transgender boy with autism, assigned female at birth. The parents had not yet accepted their child’s gender identity and considered it a phase associated with autism. The local authority sought to name a single-sex girls’ school in his EHC plan. We made an Equality Act challenge and a coeducational school was named. He was then subject to emotional and physical transphobic bullying and we supported parents to secure a change of placement to a small supportive specialist independent school.
Good schools celebrate diversity in all its forms, focusing on a key objective of nurturing a sense of belonging for all.
Good practice typically involves the school adopting an individual approach to gender transitioning including name and pronoun change, provision of gender neutral toilets and changing room facilities or access by gender identity. Additionally a whole school approach to using gender neutral language, staff training on trans issues and robust policies such as anti-bullying and safeguarding.
This is where education lawyers can, and do, help. We may not be able to improve all schools everywhere, but we know just how exhausting, unproductive and sometimes dangerous it is to try and hammer a round peg into a square hole.