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Equality and Human Rights Commission updates its technical guidance for schools in England

In 2014 the Equality and Human Rights Commission (EHRC) first published guidance for schools to help them comply with their duties under the Equality 2010.

On 22 September 2023 that guidance was updated so that references to sex and gender reassignment (both of which are protected characteristics under the Equality Act) reflect current developments.  The key changes are:

  • The definitions of ‘sex’ and ‘transgender’ have been updated and shortened.
  • The old guidance provided that gender segregation was permitted in limited circumstances. However, the new guidance now refers to sex. The new guidance provides that ‘sex segregation is permitted in certain situations, such as where is it necessary and appropriate to preserve privacy and decency. The law requires schools to provide single sex toilet facilities‘ for children aged 9 and above and single sex changing facilities must be provided for children aged 12 and above.  Schools can therefore segregate according to biological sex rather than gender. The guidance recommends that transgender pupils should be provided with private changing facilities.
  • The FAQs previously advised that it would be discriminatory to not use a transgendered pupil’s preferred pronouns or name. This guidance has now been removed.  However, the guidance states that if a staff member ‘repeatedly tells a transsexual pupil that ‘he’ should not dress like a girl and that ‘he’ looks silly, which causes the pupil great distress’‘ or requires a trans-girl use the boys’ changing room when they were living as a girl then this could be direct and indirect discrimination respectively.

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The Chairwoman of the EHRC also urged the Department for Education to publish their updated advice.  The Department for Education’s guidance from 2018 was due to be updated prior to the summer holidays.  Currently there is no date as to when this will be published.

Issues relating to sex and gender reassignment are always fact sensitive and each matter needs to be considered on a case by case basis.  If any issues occur within your school,  please do not hesitate to get in touch with our expert Education Lawyers for specific legal advice.