What the law says
Australians are protected from discrimination by education providers on the grounds of sex or gender identity by Section 21 of our Federal Sex Discrimination Act (1984). However there are legal exemptions that some faith-based and single-sex schools may choose to rely on to deny enrolment for gender diverse children. We’ve provided more information on religious and single-sex schools below.
Working with your school to affirm your child’s identity
Take a child-centred approach
It is important that your child is at the centre of the decision-making process. Once an action plan is in place, make sure you check in with them regularly about how things are going at school and let your child know that you are willing to go back to the school to make further changes and continue to advocate if it is needed.
Everyone is on a journey
Remember this might be totally new for the school. Be prepared to have to educate them and be patient.
It’s good to discuss with your child and the school when changes will be occurring (such as your child deciding to wear a different uniform or use a new name, or the school assigning gender-neutral toilets). The school may need time to work out logistics. You may also need to keep in mind that your child may have been thinking about their transition for a long time and it may be a matter of urgency for their health and wellbeing that changes to affirm their gender are actioned quickly.
Toilets, camps and change rooms
Your child should be allowed to use the toilet that aligns with their affirmed gender or that they feel most comfortable using. They are protected by Australian discrimination law to do so.
Section 22 of the Australian Sex Discrimination Act (1984) states that it is unlawful to deny access to facilities because of a person’s gender identity.
You may need to remind the school that your child may be hyper-vigilant about their body, particularly in change rooms, and that they should be taking the needs of your child into consideration above all. The school should never force your child to use a bathroom or get changed in a space that does not align with their gender and where they do not feel safe.
Taking actions to make toilets safe spaces benefits all students. Because toilets aren’t easily monitored, they can be a place where bullying takes place. This is a good thing to advise your school because it can shift the focus of any changes to toilets from your child to the safety of all students.
School camps
The focus of this conversation should be about your child’s right to participate and what the school is going to put into place to ensure this happens.
You may need to have to meet with the school a few times before camp, to discuss how the camp is set up, and the activities students will be doing. Sometimes elements may need to be reimagined by you, your child, the school and the camp facilitators to accommodate for your child.
The student should sleep in the dorm room which aligns with their gender identity, and non-binary students should sleep in the dorm room where they feel the safest and most comfortable. Otherwise, the school may be able to arrange for your child to share a smaller dormitory room with their friends.
Sport and physical education
Schools should take a participatory approach that enables the inclusion of all students. If your child wants to participate in sport, then the conversation should be around what a school will do to enable participation.
Children are allowed to participate in sports on whatever gendered team they feel most comfortable. It is normal for some students to be stronger, or faster or better than other students – no matter their sex or gender – and schools should not be excluding any student based on their gender identity.
The Australian Sex Discrimination Act (1984) states that it is unlawful to exclude any person 12 years or under on the ground of their gender identity from any sport or gendered team or sport.
Excluding people 13 years and older on the grounds of their “strength, stamina or physique” is considered discrimination (unless the person is competing, and at a level which facilitators can prove is ‘elite’) So people of this age should also not be denied playing on a gendered team of their choice.
Ask the school whether sporting activities need to be divided by gender. For example, there may be opportunities to include more mixed teams/events in your sports/PE program.
Getting changed in front of peers may be a major source of anxiety for your child. Discuss what can be put in place to ensure your child can get changed into and out of their sports uniform or swimwear safely. It could include permission to wear their sports uniform all day.
Things you can remind your school:
- Participation is a right and part of your child’s education, so the school needs to work out how to enable their participation.
- Gender diverse students are likely to be hyper-vigilant about their bodies and should have special permissions regarding changing into their sports uniform or swimwear.
- Excluding students from school sports claiming ‘stamina and strength’ is discrimination. argument to try and exclude or limit your child’s participation.
Professional development for school staff
You could suggest to your school that they arrange some professional development. This can help to get everyone on the same page and answer staff questions on one go. These sessions can still be done in a confidential way. Availability might be limited if you’re in regional or rural areas, but it is still worth calling providers to see what they can offer.
External Agencies and other resources
Sometimes the student will be receiving support from an external agency (for example, a gender therapist) and they may wish for this person to be involved in the planning for school.
Confidentiality and disclosure
Sometimes parents and schools think that they need to tell everyone. And mostly, this desire to tell everyone comes from a good place. But it can all also come from misunderstanding or prejudice about gender diverse people, or fear or worry about what other parents will say or how they will respond.
Schools have an obligation to keep student confidentiality. They must not talk to other students or parents about your child unless you and your child have given them permission to do so. They also have an obligation to support the health and wellbeing of all students. Ask the school about their privacy policy and remind them that responding to the needs of your gender diverse child is no different to the private and personal information of any other student.
It is of course fine to tell everyone – but only if your child agrees (not every child wants to be known as gender diverse at school) and the school has some plans in place for how they are going to deal with any issues that might arise.
Telling friends at school
This can be the scariest thing, because it can feel as though it has the highest risk. Friends are so important, and the risk of rejection is real. But this can also be a supportive and affirming experience. Whatever the response from others, remind your child of how brave and courageous they are, tell them they can be proud of who they are and who they are becoming.
A few things for you and your child to think about:
- Do not come out on behalf of your child, make sure they are comfortable with who you are telling.
- Consider carefully the use of social media when telling their friends. You can lose control of information on social media and people can be negative. If you or your child experiences abuse, you can report it to the e-Safety Commissioner.
- On the other hand, social media can also be a very positive space. Some people have taken a ‘band aid’ style approach: tell everyone, have a couple weeks of fielding responses, and then get on with living.
- Make sure that you and your child are clear on the potential risks and benefits. Work out a plan beforehand to deal with difficult or less supportive responses.
- When talking with friends, a conversation about confidentiality and trust should be part of this conversation. You may also consider following up with parents of your child’s friends (especially if your child is younger), because just like you did, those parents will also have questions.
Telling the class & peers
There are lots of different ways to approach this:
- Your child might want to be the one that shares their information. Or they might not want to be there at all.
- They might want the teacher to share but be there for the questions and to help answer them.
- They could write a letter to their class that the teacher – or a friend – reads out.
- It could happen on a Friday and they take the day off, so that the students have time to ask their questions and get over their first reactions. It could happen at the start of term, or equally at the end.
- Once they have told their class or peers, school could also send home a letter with some supporting resources for families to continue the discussion.
We’re starting at a new school: To tell or not to tell?
This is entirely up to you – one of the main reasons you would tell some key people is to make sure that all the school records match and align with your child’s gender identity and show their name accurately. If you enrolled using your child’s birth certificate which doesn’t align with their gender identity and their chosen name, then making sure that the records are accurate is important. Some schools may require an updated birth certificate to change your child’s name on some records.
Policy
Become familiar with your school’s and your state or territory’s education department policies as these provide guidance to the school about their obligations to support your child. Print them out and take them with you to meetings at school.
Whilst not every school will have a policy that specifically supports gender diverse students, most states and territories should have policy around health and wellbeing, duty of care, and bullying, and some may have policy around inclusion.
Policy is there to guide and support schools. If they are nervous about parent or school community responses, they can use language found in policy to develop their narrative for the importance of supporting your child.
If the school is not being helpful, you can use policy more forcefully, pointing out their duty of care for your child. As your child’s advocate, it’s reasonable to remind the school that they have an obligation to support your child and direct them to the law and the policies that say this.
Your child has a right to education; this is a fundamental human right. If your child does not feel safe at school, or if their health and wellbeing is suffering because the school is not being responsive to their needs, then they cannot remain engaged in learning. Schools have a responsibility to respond to the individual needs of every student to ensure that they remain engaged at school and able to focus on their learning. Framing your approach to the school in this way can help as it speaks a similar language to the school.
My child is being bullied – what should I do?
Bullying is a serious issue and can have lifelong impacts on a person.
Keep a written record of incidents, then book a time to meet with the school and discuss what has been happening and how it’s impacted your child. Write a follow-up email noting actions that have been agreed upon to stop the negative behaviour. After a fortnight, have a second meeting to review how the actions have been working, or to let the school know if your child is still complaining of being bullied.
If the bullying continues, it would be worth speaking anonymously with someone in your state or territory education department, or the peak body that oversees your private school. They can provide local advice and direct you to staff in regional offices who can help you to work with the school directly.
If it persists, it is important to be aware that an appeal to the Human Rights Commission is an option for you, though schools may find this approach confronting.
Finally, you might consider moving schools. This might feel extreme, but it can be a positive action in enabling your child to make a new start in their affirmed gender.
Faith-based and single-sex schools
Firstly, it’s helpful to check with your school’s governing body – or your church itself – to see if they have a position on gender diverse students. Some do have positioning statements encouraging schools of their religion to welcome, accept and affirm gender diverse students.
At the time of publication, faith-based environments can rely on exemptions in Section 38 the Act. If a school follows the beliefs or teachings of a particular religion, is not unlawful for that school to discriminate against a student’s gender identity when providing education or training, if the discrimination is ‘in good faith’ and “in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”.
Single-sex schools may rely on exemptions in state- and territory-based legislation to refuse the enrolment of children who are not of the prescribed sex, for example, an all-girls school refusing to enrol a child of male sex, even if that child identifies as female.
But these kinds of decisions could potentially cause harm to the people involved. Advice from some state governments is that a decision about enrolment should be based on the child’s gender identity. So a child that was assigned female at birth who is living as male should be considered suitable for enrolment for a boys’ school.
It is worth discussing with your school whether they will choose to rely on either of these exemptions regarding your child’s enrolment with them.
Furthermore, the Australian Government has committed to reforming these Federal anti-discrimination laws to ensure that a religious educational institution must not discriminate against a student on the basis of gender identity; while it may continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff.
Final word
Remember, you are not alone. There is a whole community of families and carers who have gone through or are currently experiencing something similar. You do not need to solve this on your own.
If you are needing some extra support, have any questions, or just want to chat through your next steps, please contact Transcend at Transcend Australia or email them at families@transcendaus.org.