Advice for schools and colleges on toilets and changing rooms Schools and colleges often express confusion and a lack of knowledge on how best to provide for transgender students when it comes to toilet and changing room facilities. This is likely due to a lack of trans-specific Government guidance on how this should be dealt with. This document collects the current standards required by the Government for general school facilities, and explains the legal obligations on schools described by the Equality Act 2010.
General standards for school premises The Department for Education has advice (March 2015) on standards for school premises1. These state that: “Separate toilet facilities for boys and girls aged 8 years or over must be provided except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time” “Suitable changing accommodation and showers must be provided for pupils aged 11 years or over at the start of the school year who receive physical education” “Where there is unisex provision (under ISS 23A (1) (b) or SPR 4 (2)), the privacy of the occupant needs to be ensured and this will be achieved by, for example, having adequate enclosure and a full height door”.
Equality Act 2010 In May 2014, the Department for Education issued a document entitled “The Equality Act 2010 and schools”. This document2 describes how the Act imposes legal obligations on schools/colleges regarding trans students:
“Gender reassignment is defined in the Equality Act as applying to anyone who is undergoing, has undergone or is proposing to undergo a process (or part of a process) of reassigning their sex by changing physiological or other attributes. This definition means that in order to be protected under the Act, a pupil will not necessarily have to be undertaking a medical procedure to change their sex but must be taking steps to live in the opposite gender, or proposing to do so”. It is “unlawful for schools to treat pupils less favourably because of their gender reassignment and that schools will have to factor in gender reassignment when considering their obligations under the Equality Duty”. “Schools need to make sure that all gender variant pupils, or the children of transgender parents, are not singled out for different and less favourable treatment from that given to other pupils. They should check that there are no practices which could result in unfair, less favourable treatment of such pupils”. With ‘gender reassignment’ as a protected characteristic under the Act, trans people who identify within the gender binary currently recognised by UK law (i.e. men and women) should be recognised by all public bodies as their acquired gender. With this taken into account, rules regarding boys and girls should be applied equally to trans boys and trans girls respectively. Often we hear that trans students wish to use the facilities assigned to the gender identity that they hold, but are instead asked to use disabled facilities. This in direct contravention of the principles of the Act regarding “unfavourable treatment”, and there is no reasonable or legal basis for schools/colleges to make this requirement of trans students. Unfortunately for trans people who identify outside of the gender binary in some way (e.g. as non-binary, gender non-conforming, genderqueer, genderfuid etc.), they are not currently recognised by UK law. As a result we cannot necessarily point to the Equality Act as a way of enforcing rights for trans people in this situation. Neither does the Government require schools or colleges to provide the gender-neutral (‘unisex’) facilities that people who identify in these ways may typically wish to have access to. It is the Centre’s belief that individual gender-neutral facilities should be provided as a matter of course, but we recognise that this is not always possible for every school/college, particularly those whose premises include older buildings. For schools/colleges that wish to install gender-neutral facilities in the future but currently have no such provision, they must present a clear stance on what trans students should do until those facilities are installed. In these cases, we would ask that the school or college consult with the young person and ask them which of the current facilities they would feel most comfortable using. Given this information, the school/college should support the student in their choice.
References 1. Department for Education. 2015. Advice on standards for school premises.
[Online] Available from: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/41 0294/Advice_on_standards_for_school_premises.pdf [Accessed 10th May 2016] 2. Department for Education. 2014. The Equality Act 2010 and schools. [Online] Available from: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/41 0294/Advice_on_standards_for_school_premises.pdf [Accessed 10th May 2016]