The last decade has seen a notable rise in adults and children in the UK identifying as transgender.
The average number of children referred to the Gender Identity Development Service per week increased from 2 in 2010 to 50 in 2018(1) (an increase of 2,500%), and the Government’s Equalities Office tentatively estimated in 2018 that UK’s transgender population numbered between 200,000 and 500,000(2).
Against this backdrop, schools, parents and pupils alike are seeking to understand if and how a transgender pupil might attend a single sex school. Unfortunately, the current legal framework and guidance issued under it does not provide much clarity.
There is no doubt that the issue is causing real difficulty. The Girls’ Day School Trust (‘GDST’) – a group of 25 all girls’ independent schools (the largest such group in the UK) – announced in early January 2022 that transgender girls would not be eligible for admission to its schools. GDST explained that an admissions policy based on gender identity, rather than on birth (or biological) sex, would risk jeopardising the group’s schools’ single sex status under the Equality Act 2010 (the ‘Act’).
In response, a petition called ‘Let transgender girls go to GDST schools’ has been set up and has received over 4,500 signatures(3) (at the date of this article); those who started the petition pose the question ‘since transgender girls are girls, why can’t they attend a girls’ school?’. In addition, MP Nadia Whittome has opposed the policy and argued that admitting transgender girls would not jeopardise use of the exemption in the Act for single sex schools(4).
How does the Equality Act deal with the issue?
The Equality Act prohibits discrimination because of or related to certain protected characteristics including sex and gender reassignment. Arguably it has not kept pace with changing norms in relation to sex, gender and associated concepts, which is contributing to the difficulties faced by single sex schools.
The Act defines ‘sex’ as being a man or a woman and does not explicitly state whether this means biological sex (ie the sex assigned at birth), or the sex with which an individual identifies, but it is generally understood to mean biological sex.
The Act defines a person as having the characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process for the purpose of reassigning their sex by changing physiological or other attributes of sex. ‘Process’ is broadly interpreted and it is not necessary for any surgery or other medical procedures to have been undertaken. The term ‘transgender’ does not appear in the Act, but ‘gender reassignment’ is a characteristic that potential applicants to single sex schools may have.
The protected characteristic at the heart of the question of single sex schools and admission of transgender pupils is the sex of the applicant. GDST’s policy does not seek to exclude transgender girls from admission because of their gender identity. Rather, GDST’s policy relates to the sex of prospective pupils, and the risk of breaching the Act’s anti-discrimination rules in relation to sex.
The Act and single sex schools
The starting position is sex discrimination by schools is prohibited under the Act.
There is, however, an exemption for single sex schools, which are able to admit pupils of one sex only, without falling foul of the general prohibition on sex discrimination.
The Act qualifies this exemption in two ways; a single sex school can admit pupils of the opposite sex and still fall within the exemption provided that:
- their admission is ‘exceptional’; or
- their numbers are ‘comparatively small’ and their admission is confined to particular courses or classes’.
- would admitting transgender pupils risk putting the school in breach of the Equality Act?
- who should be involved in and/or consulted about the development of the policy?
- what is the view of the majority of the school’s pupils and their parents?
- how would the policy reflect/promote the school’s values and principles?
- what objectives would the policy set out?
- would safeguarding considerations need to be factored in or around the formation of the policy?
- what definitions and nomenclature would the school want to work with in its policy?
- what sort of conduct should be expressly referred to in the policy (eg support for transitioning students, bullying, harassment, respect, inclusivity)?
- how might the school deal with internal objections to its policy? (Eg governors, staff, pupils and parents)
- how might the school deal with external objections to its policy? (Eg members of the public, public figures, and/or media commentators)
- who should be trained on the policy and how?
- how often should the policy be reviewed and by whom?
- who will the policy’s sponsor be (for example, the Chair of Governors, or Headteacher?)
The second of these is not likely to be helpful to schools struggling to decide how to deal with applications from transgender pupils. It is plainly aimed at situations in which a particular course is not widely taught in local schools, but a particular single sex school is able to make provision for it from which students of the opposite sex at other schools might wish to benefit.
The first example – that pupils are only admitted on an ‘an exceptional’ basis, may be more relevant to a single sex school seeking to admit transgender pupils. The Act does not however define ‘exceptional’, or what would – or would not – constitute a pupil’s admission to a single sex school being ‘exceptional’.
The Department for Education published guidance on the Act in 2014, which says: ‘Single sex schools are able to refuse to admit pupils of the opposite sex. The exception also permits a single sex school to admit a small number of pupils from the opposite sex on an exceptional basis or in relation to particular courses or classes only.
Again however the highlighted terms are not defined, leading to uncertainty about what the Act and the guidance mean in practice. Many single sex schools are structured as charities. The Charity Commission guidance on the Act unfortunately takes matters no further. In Chapter 8.6 ‘Admission to education’, the guidance simply states that single sex schools ‘are allowed to admit students based on gender’, but gives no specific guidance on the admission of small numbers of pupils of the opposite sex.
All this leaves aside the further question of whether it would be acceptable to transgender pupils to be admitted to a school on the basis that this exception was being relied upon. Many might object to a policy that effectively treats them as being of their biological sex, when they no longer identify themselves in that way.
Key considerations for single sex schools
The landscape is, at present, unclear. It is – at best – uncertain that adopting a policy of admitting transgender girls would constitute ‘exceptional’ admission, and therefore prevent a school losing its single sex exemption. This ambiguity is far from helpful for those operating single sex schools, as well as for transgender pupils and their parents.
All schools must be run according to the law. Given the lack of legal clarity and regulatory reassurance, it is easy to understand why GDST has concluded there would be risks to its ability to use the single sex exemption, were it to allow transgender girls to apply.
Unless or until the shortcomings in the framework are addressed (whether by amendment to the Act, regulatory guidance being issued or a claim being considered by the courts), the mutually frustrating challenges for schools and transgender pupils will continue to persist.
Despite the inadequacies of the framework, pressures and expectations on single sex schools to adopt a policy on transgender admission are only likely to increase. Given this, those running single sex schools would be advised to engage with this issue now, as best they can in the circumstances. There is no guarantee that the current framework will change in the near future, and a single sex school would find itself immediately on the back foot were it to be challenged to explain an admissions policy for transgender pupils which had not yet been devised.
What should schools be thinking about?
In engaging with the issue and formulating a policy on the admission of transgender pupils, some useful considerations for those running a single sex school would be:
A close eye should be kept on the current framework, and in particular any guidance from the Charity Commission and the Equality and Human Rights Commission, which is the enforcement body for breaches of the Act. Any developments in this regard should trigger a review and – if appropriate – re-evaluation and updating of the admissions policy.
Withers have market leading expertise charity and equality law. We are on hand to support with any aspects of this issue, including forming a suitable and legally robust policy, and dealing with challenges to, or queries on, an existing policy.
