Supporting transgender young people in schools: guidance for Scottish schools

Policy, legislation and further information

In this section:

• Education policy and approach
• Legislation
• Puberty and medical transition
• Additional resources

This section sets out the policy and legislative context for supporting transgender young people in schools. The section also provides further information, including on how puberty might affect a transgender young person and medical transition. It also suggests some useful educational resources, books and sources of further information.

Education policy and approach

The following policy and legislative context provides the framework for supporting transgender young people in schools.

Education policy and approaches are designed to allow teachers to use their professional judgement to establish the content, context and manner in which they are carried out. If the words 'trans' or 'transgender' are not specifically mentioned in policy, it does not mean they should be excluded from your approach or from the curriculum.

Curriculum for Excellence

Scotland's Curriculum - Curriculum for Excellence (CfE) - aims for children and young people to be confident individuals, effective contributors, responsible citizens and successful learners.

Under 'Health and Wellbeing' responsibilities for all, 'Children and young people should feel happy, safe, respected and included in the school environment and all staff should be proactive in promoting positive behaviour in the classroom, playground and the wider school community'. For transgender young people to feel happy, safe, respected and included, their identities need to be positively included in the learning environment, and they need to feel confident that they can talk to school staff.

Under 'Responsibilities for All' children and young people should, amongst other things:

• develop my self-awareness, self-worth and respect for others
• understand and develop my physical, mental and spiritual wellbeing and social skills
• understand that adults in my school community have a responsibility to look after me, listen to my concerns and involve others where necessary
• learn about where to find help and resources to inform choices
• reflect on my strengths and skills to help me make informed choices when planning my next steps
• acknowledge diversity and understand that it is everyone's responsibility to challenge discrimination.

CfE experiences and outcomes under Health and Wellbeing^[83] cover respect, healthy relationships and personal development. There are opportunities in other curriculum areas too, including social studies^[84]:

• 'I can gather and use information about forms of discrimination against people in societies and consider the impact this has on people's lives.' SOC 2-16b
• 'I can discuss issues of the diversity of cultures, values and customs in our society.' SOC 2-16c
• 'I can explain why a group I have identified might experience inequality and can suggest ways in which this inequality might be addressed.' SOC 3-16a

These outcomes give teachers scope to discuss the experiences of transgender people, and encourage understanding of issues which affect transgender young people and adults.

In 2017, the Scottish Government published guidelines on what it expects to be covered through Health and Wellbeing^[85]. It notes that learners working in Level 2 and higher should be able to 'demonstrate an understanding of diversity in sexuality and gender identity'.

Relationships, Sexual Health and Parenthood

In September 2019 a new national online Relationships Sexual Health and Parenthood resource was published^[86]. This resource will strengthen the delivery of RSHP education across the country through provision of learning activities that are age and stage appropriate for use in all education settings. The resource includes learning material on healthy relationships, consent, physical and sexual abuse, sexual health and reproduction, emotional wellbeing, stereotypes and equalities, gender and parenthood, all of which are areas that young people have told us they want to learn about.

Improving gender balance and equalities 3-18^[87]

Improving Gender Balance and Equalities (IGBE) provides age and stage appropriate resources and research for practitioners to help:

• challenge gender stereotypes;
• address unconscious bias;
• improve gender balance in subject uptake and learner pathways;
• promote whole-establishment approaches to equality.

Getting it right for every child

Getting it right for every child (GIRFEC) is the national approach in Scotland to improving outcomes for young people through promoting, supporting and safeguarding their wellbeing so that they can become confident individuals, effective contributors, successful learners and responsible citizens. It aims to provide support that is easy to access and responsive to the wellbeing needs of children, young people and their parents, through an approach that is:

• Child-focused: ensuring the child or young person, and their family, are at the centre of decision-making, and building solutions to support them
• Holistic: looking at the whole picture of a child or young person's wellbeing so that issues are not addressed in isolation from their individual circumstances, their strengths, and their resilience.
• Easily accessed: identifying a need as early as possible so that effective support is offered at the right time and before those needs get worse
• Joined-up: the child or young person, their parents and professionals work together to consider what help is required, involve the services needed to support them, and ensure co-ordination of services where beneficial through a single planning process.

All young people need to be nurtured, included, healthy, active, achieving, respected, responsible and above all safe. Consideration of wellbeing is based on those needs in the context of a young person's world and unique circumstances, as well as their strengths and factors that affect their resilience.

For transgender young people, the Getting it Right for Every Child approach means support should be holistic and they should be at the centre of any assessment, identification of solutions and support, decision making and planning.

• Schools should actively ensure that the school culture and Getting it right for every child approach is inclusive of and responsive to transgender identities, even if there are no 'out' transgender young people in the school. This helps to raise everyone's awareness and prevent transphobic bullying.

United Nations Convention on the Rights of the Child (UNCRC)

The UNCRC applies to all young people and underpins the approach to children's rights in Scotland.

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was introduced to the Scottish Parliament on 1 September 2020 and was unanimously passed by Parliament in March 2021. In April 2021, the UK Government referred the Bill to the Supreme Court to determine whether certain provisions are within the legislative competence of the Scottish Parliament. The Bill provides for commencement of the majority of provisions of the Bill 6 months after Royal Assent. It also contains powers for provisions to be commenced earlier than 6 months from Royal Assent. Royal Assent will not be possible until the Supreme Court ruling has been made but Scottish Government is continuing with preparatory work for the implementation of the Bill consistent with the fact that the case is before the Court.

The articles of the UNCRC are an important reference in supporting transgender young people. For example:

• Article 2 ensures the right to protection from discrimination. Discrimination is being treated unfairly because of who they are. Transgender young people have the right to fair treatment in school. Refusing to accommodate a transgender young person could constitute discrimination
• Article 3 requires that the best interests of the child must be the primary concern in making decisions that may affect them. Schools must keep the best interests of a transgender young person at the heart of decisions made about them
• Article 6 requires children and young people to have a right to life, to survive and develop. Transgender young people have the right to develop and grow in school, and this article states clearly that they should be supported in that. Transgender young people are more likely to suffer from suicidal thoughts and self-harm than their peers
• Article 8 details the right to an identity. It doesn't specifically name transgender young people or gender identity but it clearly states that parties should respect the right of the child to their own identity and name
• Article 12 requires respect for the views of the child. When schools make decisions about a young person, they should inform the young person and take their views into account. This is, therefore, important when making decisions about transgender young people in school settings
• Article 16 ensures a child's right to privacy. If a young person comes out as transgender there is no immediate need to inform their parents or others. See more on confidentiality and information sharing on page 35.
• Article 17 gives children the right to information that is important to their health and wellbeing. For transgender young people, this includes telling them about the support available
• Article 19 gives children the right to be protected from being hurt and mistreated, physically or mentally. Schools have a key role in keeping transgender young people safe from bullying, including transphobic bullying
• Articles 28 and 29 ensure the right of all young people to an education. This can be achieved if transgender identities are respected and included in the school environment.

Rights-based approaches can be a very powerful way to engage with learners in relation to wide range of issues.

Legislation

The Equality Act 2010

The 2010 UK Act^[88] provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It provides discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society^[89].

The Act covers discrimination based on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These categories are known in the Act as 'protected characteristics'^[90][91].

The Act provides certain protections for those with a protected characteristic, this includes protections from discrimination, harassment and victimisation.^[92] Chapter 1 of the EHRC Technical Guidance for Schools in Scotland provides an overview of the schools provisions of the Act, including what may be lawful, unlawful and whether exceptions may be available.^[93]

Equality Act exceptions^[94]:

The EHRC's Services, Public functions and Associations: Statutory Code of Practice^[95] sets out that "The basic presumption under the [Equality]Act is that discrimination because of the protected characteristics is unlawful unless any exception applies and any exception to the prohibition of discrimination should generally be interpreted restrictively."

Section 195 of the Act provides for single-sex and exceptions in relation to transgender persons for competitive sport provided under Part 3 of the Act. Schools will wish to carefully consider whether the activities they are planning would be considered competitive sport, or physical activity and sport as part of the Health and Wellbeing Curriculum. The EHRC's Services, Public functions and Associations: Statutory Code of Practice provides further advice on this exception^[96].

"Competitive sport – sex and gender reassignment

For sporting competitions where physical strength, stamina or physique are significant factors in determining success or failure, the Act permits separate events to be organised for men and for women.

If the physical strength, stamina or physique of the average person of one sex would put them at a disadvantage compared to the average person of the other sex as competitors in a sport, game or other competitive activity, it is not unlawful for those arranging the event to restrict participation to persons of one sex.

The 2010 Act permits the organisers of such a sport, game or other competitive activity to restrict participation of a transsexual person in that activity but only if this is necessary in a particular case to secure fair competition or the safety of other competitors."

There are also single-sex exceptions in the Equality Act 2010 for services under Part 3, Services and Public Functions. The EHRC's Services, Public functions and Associations: Statutory Code of Practice provides further advice on this exception

"Gender reassignment discrimination and separate and single-sex services^[97]

If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful where the exclusion is a proportionate means of achieving a legitimate aim."^[98]

The 2010 Act also contains an exception relating to communal accommodation.^[99] The EHRC's Technical Guidance for Schools sets out that "'Communal accommodation' is residential accommodation that includes dormitories or other shared sleeping accommodation, which, for reasons of privacy, should be used only by persons of the same sex. It can also include residential accommodation that should be used only by persons of the same sex because of the nature of the sanitary facilities serving the accommodation." The guidance also sets out the matters which a school would wish to take into account in relation to the exception.

Legitimate Aim

The EHRC's Technical Guidance for Schools^[100] sets out that in the context of school education, examples of legitimate aims might include:

• ensuring that education, benefits, facilities and services are targeted at those who most need them;
• the fair exercise of powers;
• ensuring the health and safety of pupils and staff, provided that risks are clearly specified;
• maintaining academic and behaviour standards; and
• ensuring the wellbeing and dignity of pupils.

Further information about legitimate aim in the context of discrimination is available in the EHRC's Technical Guidance for Schools in Scotland^[101]

What does guidance say about gender reassignment?

The EHRC Technical Guidance for Schools^[102] sets out that gender reassignment "is a personal process (rather than a medical process) that involves a person moving away from his or her birth sex to his or her preferred gender and thus expressing that gender in a way that differs from, or is inconsistent with, the physical sex with which he or she was born. This personal process may include undergoing medical procedures or, as is more likely for school pupils, it may simply include choosing to dress in a different way as part of the personal process of change. A person will be protected because of gender reassignment once:

• he or she makes his or her intention known to someone, regardless of who this is (whether it is someone at school or at home, or someone such as a doctor);
• he or she has proposed to undergo gender reassignment, even if he or she takes no further steps or decides to stop later on;
• there is manifestation of an intention to undergo gender reassignment, even if he or she has not reached an irrevocable decision
• he or she starts or continues to dress, behave or live (full-time or part-time) according to the gender with which he or she identifies as a person;
• he or she undergoes treatment related to gender reassignment, such as surgery or hormone therapy; or
• he or she has received gender recognition under the Gender Recognition Act 2004. It does not matter which of these applies to a person for him or her to be protected because of the characteristic of gender reassignment"^[103].

Data Protection Law^[104]

There is also legislation on processing (including sharing) personal information related to young people.

The UK General Data Protection Regulation (UK GDPR) together with the Data Protection Act 2018^[105] provides the legal framework for the processing of personal data. They regulate the processing, including the collection, use and disclosure of personal data, and gives individuals certain rights in relation to their personal data. Children have rights in their own regard where they have sufficient maturity and understanding to do so, which they are presumed to do from age 12. This means that schools should ensure that transgender young people's rights to processing of their personal data including, where relevant, consent should be met, and that their rights in relation to appropriate use of data within schools should be upheld.

The Education (Additional Support for Learning) (Scotland) Act 2004

ThisAct^[106] states that a child or young person has additional support needs 'where, for whatever reason, the child or young person is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child or young person'.

The legislation may apply to any young person experiencing bullying or discrimination. It also applies to children and young people experiencing poor mental health, where these matters cause a barrier to the child or young person's mental health.

Children and Young People (Scotland) Act 2014

The Children and Young People (Scotland) Act 2014 places a duty on Scottish Ministers to keep under consideration whether there are any steps which they could take which may secure better or further effect in Scotland of the UNCRC requirements, and if appropriate, take those steps. Schools should be mindful of this and of the duty on local authorities to report on the steps taken to secure better or further effect within its areas of responsibility of the UNCRC requirements.

The Offences (Aggravation by Prejudice) (Scotland) Act 2009

This Act creates a statutory aggravation for crimes where at the time of committing the offence, or immediately before or after doing so, the offender evinces (demonstrates) malice and ill-will towards an individual based on their actual or perceived sexual orientation, transgender identity or disability. The statutory aggravations can also apply if it is proved that the offence was motivated by malice and ill-will towards persons who have those characteristics. This Act, in combination with similar legislation focusing on religion and race, is commonly referred to as Hate Crime legislation^[107].

If offences are proven to result from such malice or ill-will, the court must take this into account when determining a sentence. This can lead to a longer custodial sentence, higher fine or a different type of sentence.

For more information see: https://www.scotland.police.uk/advice-and-information/hate-crime/

The Age of Legal Capacity (Scotland) Act 1991

This Act states that a child of 12 and over is presumed to have sufficient capacity to make decisions, and enter into formal agreements on their own behalf. This includes to instruct a solicitor, to sue on their own behalf and consent to their own medical treatment, and to enter into transactions usual for a child of that age. As is noted below, a young person cannot undertake the process of changing their sex on their birth certificate until they are 18 years of age^[108]. Further information on medical transition and puberty is also available below. These should be read together.

The Gender Recognition Act 2004 and legal recognition

The Gender Recognition Act created a process for the legal recognition of an individual's acquired gender, which enables changing the sex recorded on a person's birth certificate.

If an individual is 18 years or older, has lived in a way that affirms their gender identity for at least two years, intends to continue living in the acquired gender, and has been diagnosed as having gender dysphoria, they can apply to receive a Gender Recognition Certificate (GRC). A GRC enables individuals to change the sex recorded on their UK birth certificate. An individual can receive a GRC without having undergone hormone treatment or surgery.

Puberty and medical transition

Transgender young people may recognise and discuss their gender identity at any age. Before puberty, any transition or change is limited to socially changing their name, pronoun and gender expression. These aspects do not need medical or healthcare involvement.

The onset of puberty can often confirm feelings of 'gender dysphoria' when the body begins to change and develop in ways which are inconsistent with the young person's gender identity. This can be very distressing and transgender young people may develop negative ways of coping such as self-harming.

It is important to recognise that not all young people who identify as transgender seek medical assistance to transition, want medical treatment or need it. In Scotland, medical interventions for transgender young people^[109] (under 18) take place at the Young People's Gender Service (YPGS), based at Sandyford Services in Glasgow^[110]. Referral can be made before puberty, though the main focus of the service is on young people who are in early puberty and onwards.

Transgender young people can be referred to the clinic by:

• Their GP
• Their parents or carers
• An outside agency
• Self-referring.

There is a waiting list, so young people may wait some time before an appointment is offered with the clinic. This can be very difficult for some young people. The school, their families and outside agencies often have to support transgender young people at this time.

Following assessment, if the YPGS diagnoses a young person with 'gender dysphoria', it can offer ongoing support. For some young people this may also involve a variety of different medical interventions.

For more information about medical transition please refer to https://www.sandyford.org/sexual-health-services/what-are-our-services/gender-identity-service/