Transgender Admissions: Uncertainty Surrounds Single-Sex Schools
Single-sex schools are facing uncertainty when it comes to admitting transgender students due to different legal interpretations. The question of what position these schools should take on transgender pupil admissions, when the applicant’s gender differs from the school’s selection, remains a topic of debate. While waiting for official guidance from the Department for Education (DfE), this article aims to shed light on the law and the various interpretations surrounding it.
Discrimination is strictly prohibited in schools, whether it’s direct or indirect, based on sex or gender reassignment. The duty to prevent discrimination applies to the arrangements made for pupil admissions, as outlined in Section 85 of the Equality Act 2010. It should be noted that individuals under 18 cannot obtain a gender reassignment certificate under the Gender Recognition Act 2004. Nonetheless, the definition of gender reassignment under the Equality Act is broader, encompassing those who are in the process of transitioning or have already undergone it.
While sex is not specifically defined within the Act, it includes men and women of any age. Single-sex schools, however, have an exemption under Schedule 11 of the Act regarding the protected characteristic of sex and admissions. These schools maintain their exempt status even if they admit students of the opposite sex if certain conditions are met.
Here are the conditions for maintaining the exemption:
1. Admission of pupils of the opposite sex is not detrimental to the education or welfare of current students.
2. Admitting pupils of the opposite sex is done to meet a need that could not be reasonably met by a school of the appropriate sex.
3. The arrangements made for admitting pupils are a proportionate response to the aim of maintaining single-sex status.
The ambiguity arises from the fact that the exemption only pertains to sex and not gender reassignment. While it may be challenging to prove direct discrimination against a transgender student based on their protected characteristics, there is a possibility that admission arrangements could be considered indirectly discriminatory under Section 19 of the Act. This section states that a school discriminates against a potential pupil if they treat them less favorably than another person in a similar situation without the protected characteristic of gender reassignment.
Different interpretations arise from this situation. For example, a boys’ school might reject the admission of a student who was assigned female at birth but is seeking to transition to male. In such cases, the argument might be made that the school is treating this student no differently than a female student not seeking to transition. The refusal of admission, therefore, would be based on the student’s sex, rather than their transition, making it difficult to claim direct discrimination. The school might argue that their decision is justified in order to maintain their single-sex status.
On the other hand, the parents of the transgender student might argue that their child should be compared to a male student, not a female one, suggesting differential treatment.
The absence of clear legal precedent on this matter, despite the Equality Act being in force for more than a decade, highlights the significant uncertainty surrounding it. It is crucial for single-sex schools to be cautious and ensure any admissions of students of the opposite sex are limited, either in number or to specific classes or courses, to avoid risking the loss of their single-sex exemption.
Additionally, admission policies set by the school’s admission authority must be followed or modified to reflect a more explicit position on transgender student admissions.
So far, there have been no cases specifically addressing this issue. Some single-sex schools have chosen to admit transgender students of the opposite sex to avoid potential disputes, given the infrequency of such cases. The uncertainty in the law, coupled with potential legal costs, likely deters potential claimants from pursuing lawsuits.
The guidance expected from the Department for Education (DfE) will hopefully provide single-sex schools with valuable direction in making admission decisions regarding transgender students. The release of this guidance is eagerly awaited, as it will shed light on the matter and help schools navigate the legal landscape effectively.
