Protecting gender diverse students: the importance of getting it right

Protecting gender diverse students: the importance of getting it right

With an increasing number of young people identifying as gender diverse, schools are becoming more mindful of their obligations towards these students, and what it means if they fail to meet them.

However, as recent events have shown, the latter can have serious implications for schools.

Human rights lawyers recently accused 11 private schools of exposing their students to potential discrimination after their enrolment forms demanded prospective families support beliefs denouncing homosexuality and diverse gender identity.

In July, the Queensland Human Rights Commission reviewed the State's Anti-Discrimination Act, prompting many schools to evaluate their obligation towards LGBTIQ students.

Where schools and education providers have felt the force of public response to notions of gender being prescribed in contracts with children, Megan Kavanagh, a partner in Colin Biggers & Paisley’s employment and safety team says principals should be considering what might come from this review, what the current obligations are and how to prepare for change in this sector.

Below, The Educator speaks to Kavanagh about existing obligations for schools, the likely outcome of a review into Queensland’s Anti-Discrimination Act, and possible changes that principals should be preparing for.

TE: What are the current obligations of Queensland schools towards LGBTIQ students, and are these obligations similar across the different state and territory education jurisdictions in Australia?

Public schools have strict legislative obligations to eliminate sexual discrimination against students. Private schools may be subject to exemptions under these laws, however discrimination may still be referred to the Queensland Human Rights Commission or the Non-State Schools Accreditation Board. Schools should consider how uniforms and dress standards could potentially breach legislative obligations. Research indicates that 61% of young LGBTIQ people experienced verbal abuse, and 18% experienced physical abuse. Schools likely need to do more to ensure student safety as far as reasonably practicable. It's unlawful to collect or store a student's sensitive information unless necessary for the provision of educational services. This may have applications to a student's transition information. There is no basis for segregation in sport for students under the age of 12. Beyond 12, decision to exclude a child must be reasonable.

TE: What do you expect might come from the Queensland Human Rights Commission’s review into the State's Anti-Discrimination Act, and what will schools in other states be able to learn from this?

The final report is yet to be handed down, so speculation may not be helpful. However, given the terms of reference we might expect the recommendations to address: direct and indirect discrimination might be recognised as one offence; complainants will no longer have to establish that they were treated differently to how the discriminator would have treated a hypothetical person without the protected attribute; the Act may adopt a 'rebuttable presumption', placing the onus on the discriminator to prove they did not discriminate because of the complainant's protected attribute and to demonstrate the steps taken to prevent discrimination.

TE: How should school leaders be preparing for the changes to their obligations towards LGBTIQ students (both in Queensland and, if applicable, more broadly)?

Schools already have a legal duty to provide a safe and supportive environment for all students, including LGBTIQ students. Culture is key to discharging that duty. Schools can lead culture change by developing strong policies and training to set standards for the wider school community. To meet the existing requirements we recommend that schools consider: Conducting risk assessments to determine where LGBTIQ students may be at risk, for example, of bullying; Conducting policy review to identify and manage policy gaps; Facilitating training and information sessions with staff, as well as students and parents where appropriate.