Category: Equality Act 2010

New Scottish Government guidance for schools on Gender Based Violence

On By Iain NisbetIn Bullying, Equality Act 2010, Getting It Right For Every Child, Pupil Welfare / WellbeingLeave a comment

Friday 8 March 2024 is International Women’s Day. Presumably to co-incide with this, the Scottish Government have released “Preventing and Responding to Gender Based Violence: A Whole School Framework“. It is noteworthy that the Scottish Government describe the document as a framework, rather than as guidance. However, the document does say that one of its purposes is “providing guidance to support schools’ responses to GBV experienced, or carried out by, children and young people or other members of the school community, including staff”. How well it succeeds in this aim may be the subject of debate, as we shall see.

Children’s Rights

The framework is set in the context of children’s rights (as it should be) and in particular references the right to protection from violence (Article 19, UNCRC) and the right to an education which develops respect for others’ human rights (Article 29, UNCRC). Of particular relevance here, for those looking for some additional reading, is General Comment 18 of the Committee on the Rights of the Child on harmful practices (issued jointly with the Committee on the Elimination of Discrimination against Women).

Gender Based Violence is defined as “any form of violence used to establish, enforce or perpetuate gender inequalities and keep in place gendered orders” and thus includes violence against women and girls, but also homophobic and transphobic violence. The framework notes that Gender Based Violence can take many forms, including:

  • physical, sexual, emotional, verbal or psychological abuse and violence;
  • domestic abuse or relationship abuse (including coercive control);
  • rape, incest or unwanted touching;
  • non-consensual sharing of sexual images;
  • sexual harassment or intimidation (including online);
  • commercial sexual exploitation;
  • “honour based” violence, including female genital mutilation and forced or child marriage;
  • transphobic, homophobic or biphobic bullying.

Disability

There is a mention of intersectionality and, within that section, specific mention of pupils with disabilities. The framework notes “Violence targeted at disabled girls may include abuse targeted at their disability as well as misogyny, and they may also encounter additional barriers to accessing support.” To this I would add that pupils with disabilities may be particularly vulnerable to abuse due to their disability, particularly where assistance with personal care is required, and may experience difficulties in communicating instances of violence or abuse to appropriate bodies where there are communication difficulties.

A whole school approach

The framework describes itself as a “Whole School Framework” and espouses a whole-school approach to addressing Gender Based Violence. This is seen as encompassing:

  • universal approaches – e.g. challenging gender stereotypes and roles, changing the language and practices that support gender inequality, and curricular input
  • targeted action – e.g. responding to patterns of incidents or unacceptable attitudes / behaviours which are not directed towards an individual
  • targeted action – e.g. responding to incidents involving individuals, wellbeing assessments and meeting individual needs
  • specialist action – e.g. child protection procedures

The aim is to “positively influence school culture by fostering a shared, consistent approach tackling the underlying gender inequalities that underpin Gender Based Violence”.

From the outset the framework is clear that “If there is a risk of significant harm to the child or young person, school staff should always invoke child protection procedures, rather than seeking multi-agency voluntary support.” The dividing line between Gender Based Violence that involves a risk of significant harm, and Gender Based Violence that does not, is less clear.

Among the key features of a universal approach is this: “All school policies should actively promote gender equality. The prevention of Gender Based Violence will intersect with all areas of school life, such as uniform policy or subject choices.” Indeed, the recent consultation on school uniform included the principle that national school uniform policy should promote “equality, including recognising specific matters relating to religion and belief, disability, sex and gender.”

The one clear recommendation which comes through here (as it does elsewhere in the framework), which should be top of schools’ “to do” lists would be to ensure that you have a Gender Based Violence policy (or a Gender Based Violence section within your existing behaviour and relationships policy). The policy (or section) should “provide specific information about how [the school] will manage instances of Gender Based Violence and support all those involved”. Regrettably, there is little in terms of specific guidance on what such a policy should contain. An example policy, or a style with headings and prompts would have been extremely useful – and is sadly lacking.

Preventing Gender Based Violence

The section on preventing Gender Based Violence is at some length and is probably where the framework is at its strongest. It includes plenty of links to resources which a school could use as part of a strategy to address gender inequality. The key tools here are seen as:

  • school culture and ethos;
  • policies and systems;
  • professional learning and development; and
  • curriculum.

Schools are urged to consider, for example, “whether the rules on school uniform reinforce gender stereotypes or place undue restrictions on girls and young women, and whether girls and young women have equal access to sports activities, play and resources.” The framework goes further, noting that ensuring equal access to sports may require “protecting time slots for girls to use equipment or spaces”.

In terms of the curriculum, there are some specific suggestions on how to promote gender equality across the curriculum, including:

  • taking a non-gendered and inclusive approach to PE;
  • discussing gender stereotypes in texts;
  • asking whose voice has not been heard in novels;
  • learning about feminism and women’s rights in social subjects;
  • learning about a diverse range of women artists / scientists as well as “their often more famous white men counterparts”.

The framework also includes a list of suggestions from primary school pupils, which include “more opportunities for girls to play football and boys to play netball”, “maths questions shouldn’t say girls do skipping and boys kick a ball” and “uniforms should be .. equally enforced” – all of which is absolutely fair enough. As a side note, I did play netball at primary school (Goal Defence, if you’re interested)!

The framework encourages a trauma-informed approach to all of this, which includes making sure that “children and young people know what will happen if they make a disclosure relating to Gender Based Violence”. However, the framework itself is not really clear (in my view) about that. It does specify that child protection procedures should be followed in some cases – but not really what should happen if those procedures are not to be followed (or while they are being followed).

Responding to Gender Based Violence

The framework then turns from questions of culture, ethos and training (which I feel it does quite well) to the issue of responding to incidents of Gender Based Violence, which I think suffers from a lack of detail and direction.

The threshold set out by the framework for applying child protection procedures is where a member of staff “has concerns that a child is at risk of significant harm”. The term “significant harm” is not defined or illustrated within this document. Perhaps professionals are already sufficiently familiar with the term from other contexts?

There are broad exhortations to respond sensitively, to support the children involved, and to align the response with the National Child Protection Guidance. All of which is fine. But there is little in terms of specific notes on what to do. I suspect that what schools are looking for here is clarity, but they will have to look elsewhere – or create their own.

For example, there is an example given of a suggestion made by children and young people’s groups in Stirling and Angus that “It might be helpful to ask if the person experiencing Gender Based Violence would like a friend to accompany them while they speak with school staff, if staff members consider this appropriate and in light of the need to protect the wellbeing of all young people.”

Setting aside for one moment the fluent management speak the young people of Stirling and Angus seem to have adopted wholesale, what are we to make of this? The framework presents this suggestion in a shaded box, divorced from the rest of the text. So, is this a good idea? Is it good practice? Should schools include this in their policies? When would it be considered appropriate (or not)? Should parents be invited / allowed to attend such discussions? We are not told.

In terms of a response to incidents of Gender Based Violence at school, there is a lot about support for both those who have experienced Gender Based Violence and those who have carried out Gender Based Violence. A child’s plan is mentioned more than once as a tool which might be used for a pupil who has carried out Gender Based Violence “with a view to identifying causes and appropriate interventions including additional resources to reduce the likelihood of recurrence”.

Schools are encouraged to identify and name behaviour that constitutes Gender Based Violence, and their policy should set “clear expectations of acceptable and unacceptable behaviour, and the associated responses which school staff can utilise.”

Again, examples of either would have been of use here, I feel. In fairness, the framework does make the important point that using restorative approaches may well be inappropriate as it “has the potential to be unsafe or retraumatising” and notes that “reconciliation may not be possible or advisable in cases of Gender Based Violence”

Child Protection

The framework is pretty clear on this point – “School staff should report incidents of Gender Based Violence where they are aware of, or have reason to believe, that a crime may have occurred or that a child or young person has been seriously harmed.” Onward reporting to Police Scotland and social work should be in line with school child protection procedures.

Collecting Data, Staff and Scenarios

The framework concludes with a section on monitoring, recording and evaluation, and one of Gender Based Violence experienced by staff, neither of which we have time to cover in this (already overly lengthy) article.

There are seven scenarios listed at the end of the framework, although the responses tend to be in the “you should consider these factors” rather than “here’s what you should do” model.

An appendix of professional learning and resources at the end is comprehensive and includes some excellent material. There is enough further reading here to keep you going for months!

Conclusion

I should begin by stating that I am not an expert in this field, and have only occasionally have had cause to advise families whose children have experienced Gender Based Violence. Overall, I think the framework does a very good job of raising and discussing the issues, and I think it would be very helpful in assisting schools with the ethos and culture / preventative side of things. I am less clear of its usefulness in terms of responding to actual incidents.

There are mixed messages about bullying. The National Approach to Anti-Bullying is not listed as one of the resources, although it is referenced within a description of the resource on challenging homophobia, biphobia and transphobia. The National Approach appears to draw a clear line between bullying and Gender Based Violence: “Some behaviour can be perceived as or assumed to be bullying. However, certain incidents can often be more serious and, in fact, criminal in nature. Understanding the individual circumstances is important to ensure that there is a clear distinction between bullying and criminal offences such as hate crime, child sexual exploitation and gender-based violence such as domestic abuse and sexual assault. For instance, when someone is coerced or pressurised to do something sexual or is touched inappropriately, this is not bullying, this is sexual assault or abuse and a form of gender-based violence.” Whereas the framework lists bullying as an example of Gender Based Violence. Some clarity on this point would be welcome.

The section on the law at the end of the framework slightly overstates the reach of the Equality Act 2010 – claiming that it places specific requirements on schools “to prevent unlawful discrimination, harassment and victimisation in their schools”. The equivalent section within the National Approach is more accurate – “Although the harassment provisions of the Equality Act 2010 do not protect pupils from harassment by other pupils, the Act creates a duty on public bodies to have due regard to the need to: eliminate discrimination, harassment and victimisation; advance equality of opportunity; and, to foster good relations between people who share a relevant protected characteristic and those who do not (known as the public sector equality duty).”

In my (admittedly limited) experience, victims of Gender Based Violence at school and their families are usually principally concerned about how to protect themselves from contact of any sort with the person responsible in the future, and whether that person is going to be held accountable. In practice, my experience has been that the expectation or the easier route is often for the victim to move classes or schools – which does nothing to address the second point and discourages disclosure as it can feel like they are being punished for speaking up.

For example, there is an anonymous quote provided by Childline on page 9:

I was sexually harassed by a boy at my school. It makes me cry every time I talk about it. I’ve had meetings with the school and they told me they can’t do anything because there is no evidence of it happening. I have to see him every single day at school and it makes me so angry. I hate feeling like this. I just want to move on but I can’t.

Girl, 17, Childline

An awful situation, but I fear that there is little in the framework which would assist either the child or the school in determining what ought to happen in these circumstances. It is notable that the framework does not mention disciplinary or punitive measures once. The framework focusses on supportive measures, unless the case has reached the threshold of criminal behaviour, in which case it should be reported to the Police. I find it surprising that there are no circumstances in which a school would / could / should be imposing disciplinary measures as part of a response to Gender Based Violence. Or, if there are, that it is not discussed in this document.

Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill

On By Iain NisbetIn Consultation responses, Equality Act 2010, School EducationLeave a comment

The Education, Children and Young People Committee is the lead committee for the Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill, a private member’s Bill, introduced by Pam Duncan-Glancy MSP.

The period for interested parties to submit their views on the Bill to the Committee has recently ended. Here is a summary of my submissions.

Continue reading “Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill” →

School uniform consultation

On By Iain NisbetIn Consultation responses, Equality Act 2010, Exclusion, School EducationLeave a comment

Recently, the Scottish Government issued a consultation on national school uniform guidance that they are planning to issue. The main stated aims of the new guidance will be to reduce the costs for families, and to comply with equalities obligations.

The guidance is to apply to all schools in Scotland, whether local authority schools, independent schools, or grant-aided schools.

For a consultation document, it already has some very clear ideas about what the proposed guidance will, and will not contain.

So, we know that the guidance will not:

  • require the adoption of specific school uniform items;
  • be a national school uniform policy – instead it will help schools and education authorities to come up with their own policies;
  • abolish school uniform altogether.

And, we know that the guidance will cover:

  • the affordability of school uniform;
  • equalities considerations, aligned to protected characteristics;
  • clothing and equipment for PE, physical activity and sport; and
  • the use of exclusion as a compliance measure.

Finally, there are a set of draft principles, which the consultation document invites comment on. The section begins “national school uniform policy should ..” – which is odd, since the same document has already assured us “It is not intended that there will be a national school uniform policy which is applied in all schools – therefore this is not the subject of this consultation and is not in scope.”

Anyway, the draft principles are that national school uniform policy should:

  • Be informed by the views of children and young people
  • Apply to education authority, grant-aided and independent schools
  • Seeks to reduce the cost of school uniform for families Supports equity in relation to school uniform
  • Promotes equality, including recognising specific matters relating to religion and belief, disability, sex and gender
  • Applies to all uniform uses, including PE and senior phase
  • Recognises the need for practicality, including in relation to seasonal needs
  • Reflects sustainable approaches to school uniform
  • Continues the position of no legal requirement upon pupils to wear school uniform
  • Considers appropriate response for persistent non-wearing of uniform, recognising ethos and culture of promoting attendance and reducing absence
  • Recognises and builds upon current good practice within schools
  • Does not introduce unnecessary barriers to school uniform policy and practices.

The launch of the consultation prompted the Daily Telegraph to speculate that “Scottish pupils could be told to wear gender-neutral school uniforms” despite there being no mention of this at all. The article also claims that “SNP and Greens reveal plans for a national uniform policy to cut costs for parents and promote equality in classrooms”. In fairness, as we’ve discussed above, the consultation document is sending mixed messages on whether there is to be a national uniform policy or not. The article is worth looking at for the photo of Fettes School’s pink striped blazers alone.

I have responded to the consultation in brief, and a summary of my thoughts are as follows.

National guidance to assist schools in making sure that they can comply with their equalities duties would, no doubt, be helpful. Guidance to assist schools in reducing the cost of school uniform is also to be welcomed. I agree that it would not be appropriate to have a nationally mandated school uniform.

There is mention of “the use of exclusion as a compliance measure” as being within the scope of the guidance. I can only hope that this means that the guidance will make it clear that it is never appropriate to use exclusion as a means of ensuring compliance with school uniform policy.

In the national exclusions guidance (Included, Engaged & Involved Part 2, 2017) it is made clear that this would include sending pupils home. Therefore, the implication should be made clear that pupils should not be sent home to change in the event of not wearing school uniform – especially in the state sector.

There seems to me to be a fundamental discrepancy between two of the principles listed.

On the one hand, there is a statement that there is “no legal requirement upon pupils to wear school uniform” while at the same time considering “appropriate responses for persistent non-wearing of uniform”.

If it is not a legal requirement, then there ought not to be punitive measures for a breach of uniform policy. If there are punitive or disciplinary measures set out in national guidance for a failure (persistent or otherwise) then it is misleading to suggest that there is no legal requirement to wear school uniform.

Hopefully, what is intended here is that the “appropriate responses” referred to are supportive measures, rather than disciplinary ones.

Reasonable adjustments for schools in a time of pandemic

On By Iain NisbetIn Additional Support Needs, Equality Act 2010Leave a comment

Schools have had a duty to make reasonable adjustments for disabled pupils since amendments to the Disability Discrimination Act 1995 came into force in 2001.  These duties were later expanded to include “auxiliary aids and services”.  The phrase “reasonable adjustments” is fairly well known by now, but prompts the question – “what is reasonable?” and specifically, what might be regarded as reasonable in the particular circumstances of a global pandemic crisis.

Overview of the legal framework

Part 6, Chapter 1 of the Equality Act 2010 is the part of the Act which applies to schools.  It applies to all schools in Scotland, i.e. public schools (those managed by a local authority); independent schools; and grant-aided schools (those receiving specific direct Scottish Government funding).

The legal duties rest with the responsible body for the school.  In the case of public schools, this is the local authority as a whole – an important point when the discussion turns to funding and resources.  For independent or grant-aided schools, the managing body (e.g. a board of trustees or SCIO) is the responsible body.

The Equality Act 2010 applies across all nine “protected characteristics”, but there are two types of discrimination which only apply in relation to disability.  These are the reasonable adjustments duty (Section 20) and discrimination arising from disability (Section 15).

Reasonable adjustments

In the case of disabled pupils and schools, it is only the first and third requirements of the reasonable adjustments duty which applies.

The first requirement arises where a “provision, criterion or practice” (PCP) places a disabled person at a substantial disadvantage.  The requirement is to take reasonable steps to avoid that disadvantage.  The EHRC’s Technical Guidance for Schools in Scotland gives the example of a school policy forbidding the use of external USB devices with school computers.  In the example the school amends the policy so that a disabled pupil can be given a login that will allow him to attach an adapted keyboard in class. (para 6.9)

The third requirement arises where, without an “auxiliary aid or service,” a disabled person would be at a substantial disadvantage.  The requirement is to take reasonable steps to provide the auxiliary aid or service in question.  The Technical Guidance gives the example of a school providing a coloured plastic overlay sheet for a pupil with dyslexia.

The second requirement concerns substantial disadvantage which may arise because of a physical feature.  The schools duties do not include a requirement to remove or alter physical features of the school for disabled pupils.  However, there is a planning duty contained in the Education (Disability Strategies and Pupils’ Educational Records) (Scotland) Act 2002 which requires responsible bodies for schools to set out their plans to improve access (including physical access) to the school, on a three year cycle.

Discrimination arising from disability

This type of discrimination occurs where a disabled pupil has been treated unfavourably, because of something “arising in consequence of” pupil’s disability unless that treatment is a “proportionate means of achieving a legitimate aim”.

Unfavourable treatment is a fairly broad category and (unlike other types of discrimination) does not require a direct comparison.  That is, there is no need to find someone who has been treated more favourably than the disabled pupil.

Recent cases at the Tribunal have dealt with exclusion from school, the use of physical restraint and a refusal to allow an additional year at school as unfavourable treatment.

In cases where the unfavourable treatment is admitted or established, the responsible body may argue that the treatment was not unlawful as it was a proportionate means of achieving a legitimate goal.  Often the aim pursued is self-evidently legitimate, and the question is then whether the treatment in question was a proportionate means of pursuing that goal.

The Technical Guidance gives an example (at para 5.47) of a pupil excluded from school meals because she found queueing distressing.  There may be a legitimate goal in this case, but if there are less restrictive means of achieving that goal (e.g. could the pupil be allowed to go straight to the head of the queue?) then the responsible body will struggle to show that the treatment is justified.

Overlap with additional support needs framework

The Equality Act 2010 is not the only piece of legislation which may apply, as disabled pupils may also have “additional support needs” in terms of Section 1 of the Education (Additional Support for Learning) (Scotland) Act 2004.  There are several areas in which there is an overlap between these two legal frameworks.

It is worth noting, for example, that neither the definition of additional support needs, nor the definition of disability require a formal diagnosis.  Both Acts are more focused on the day to day experience of the individual pupil.  Indeed, the definition of additional support needs specifically includes pupils who require additional support “for whatever reason”.

The First-tier Tribunal for Scotland’s Health and Education Chamber has jurisdiction for both types of case, and can join cases together where this is appropriate.  For example, in a case involving support for a disabled pupil to access an after school guitar club, the Tribunal considered the matter as a failure to comply with the child’s CSP and a reasonable adjustments case at the same time (cf. “Landmark victory for disabled pupil”, Daily Record 19 June 2013)

Issues arising during the Covid-19 pandemic

Questions of reasonable adjustments and disability discrimination arise in school even when there is no global pandemic to complicate matters.  However, there have been some specific issues arising which relate directly to the Covid-19 pandemic and the measures taken in response.

  • Some auxiliary services which required close contact with staff were restricted or ceased altogether (e.g. personal care needs, communication support needs).
  • Some auxiliary aids / assistive equipment which required handling (and therefore cleaning) were removed, or were available only on a restricted basis.
  • There was not consistent application of guidance on which children with additional support needs or disabilities could have access to learning hubs during periods of school closure. Disagreements arose as to who was regarded as “vulnerable”.
  • Some pupils required reasonable adjustments in order to access online learning.
  • Legal authority for the closure of schools – Educational Continuity Directions – was not in place at first.  The directions disapplied some of the ASL legislation, but only in a limited fashion.
  • There are ongoing issues relating to pupils who have missed education / transition planning, and reasonable adjustments may be required for disabled pupils.
  • Some disabled pupils found that access to online learning suited them well, and the return to in person lessons has been difficult, or impossible.  Reasonable adjustments may be required in terms of delivery of the curriculum in new and innovative ways.

Recent Tribunal cases

During the pandemic the Tribunal, after a short period in which only urgent cases were progressed, has adapted quickly and well to online hearings and electronic case papers.  There is no current backlog and cases (including disability discrimination cases) continue to be heard and determined.

Over the last academic year (2020-21) the Tribunal has considered disability discrimination cases which have covered a wide range of topics including: differentiation of the curriculum, subject choices in the senior secondary stages, exclusion from school, requests for additional time at school, specific strategies for addressing dyslexia, and the use of physical restraint. Few (if any) were directly related to the pandemic, but that is the context in which they took place.  To the extent that it was considered, it is reassuring to note one Tribunal’s comments in relation to transition planning:

“the COVID-19 pandemic does not remove the obligations of the responsible body to comply with the transition regulations.”

Image by Hatice EROL from Pixabay

Pride and Prejudice

On By Iain NisbetIn Bullying, Equality Act 2010, InclusionLeave a comment

As Pride month for 2021 draws to a close, I thought it would be appropriate to write a brief article outlining what the law says about discrimination and LGBTQ pupils.

LGBTQ young people with additional support needs or a disability can face particular issues not experienced by straight / cisgender disabled people, or by non-disabled LGBTQ pupils. As the Scottish Commission for People with Learning Disabilities 2018 report “Safe and Healthy Relationships” points out: “people with learning disabilities who identify as LGBT [are] a “minority within a minority” (Elderton et al, 2013, p.302). This subgroup experience a double disadvantage which can increase the barriers in forming relationships which are safe, healthy and reciprocal.”

Protected Characteristics

The Equality Act 2010 provides protection from unlawful discrimination across nine “protected characteristics”. These include sexual orientation (section 12) and gender reassignment (section 7).

Sexual orientation is defined as “a person’s sexual orientation towards— (a) persons of the same sex, (b) persons of the opposite sex, or (c) persons of either sex.”

Gender reassignment is defined as being when “a person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.” A recent case in the Employment Tribunal (Taylor v. Jaguar Land Rover) has clarified that the reassignment need not be viewed strictly as male to female or female to male – and thus pupils identifying as gender-fluid or non-binary would also be protected.

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.

Technical Guidance 5.114

Schools

Part 6, Chapter 1 of the Equality Act 2010 covers all schools in Scotland (education authority, granted-aided or independent) and provides that the responsible body for a school must not discriminate against a pupil (or prospective pupil) in terms of admission to school; provision (or failure to provide) education or other “benefit, facility or service”; or by excluding a pupil or subjecting them to any other detriment. This would cover direct or indirect discrimination cases.

However, the prohibition on harassment (s.26(3)) does not apply in relation to the protected characteristics of sexual orientation or gender reassignment (s.26(10)). In practice, most incidents of harassment would be caught by the direct discrimination provisions in any event.

Example: As part of health and wellbeing education, a teacher describes homosexuality as ‘unnatural’ and states that he will be covering only straight relationships in the lesson. A bisexual pupil in the class is upset and offended by these comments. This may be direct discrimination on the grounds of sexual orientation.

Technical Guidance 5.19

Schedule 23, para 3 of the Act provides a general exception in relation to communal accommodation (which covers residential schools’ accommodation). Matters in relation to communal accommodation will not be unlawful in relation to sex discrimination or gender reassignment discrimination. In relation to gender reassignment, consideration must be given to whether the decision in question is “a proportionate means of achieving a legitimate aim”.

Consequences

Unlike disability discrimination cases, there is no specialist Tribunal with jurisdiction in relation to schools cases involving sexual orientation discrimination or gender reassignment discrimination. These cases are instead heard by the Sheriff Court (Section 114(1)(c)). To my knowledge, there is no case law involving cases of this type. It is hard to tell whether this is a good thing (because there are few examples of discrimination against LGBTQ pupils by schools) or a bad thing (because a lack of awareness or other factors mean people do not want to bring cases when they arise). It may be a bit of both.

There is a six month deadline for bringing cases to court (s.118), and the Sheriff should ordinarily appoint a specialist “assessor” to assist in considering the case (s.114(8)). The Sheriff Court has wide ranging powers to make a range of court orders where discrimination has taken place, including compensation for injury to feelings (s.119)- awarded on the so-called Vento scale.

Examples

In the absence of case law in education cases, we have to look to cases in other fields (usually employment) and to the Equality and Human Rights Commission’s Technical Guidance for Schools in Scotland. Although some of the examples are of fairly obvious cases of discrimination, it is helpful to consider what the guidance says nonetheless.

Example: An independent religious school has information on its website indicating that it does not tolerate homosexuality. This could constitute direct sexual orientation discrimination

Technical Guidance 2.17

Example: A school has a policy covering racial bullying and any pupil who participates in racial bullying is excluded for at least one day. However, the school does not have a policy dealing with homophobic bullying and pupils who participate in such bullying are usually given only a detention. This could lead to direct sexual orientation discrimination unless the bullying of homosexual pupils was not related to their sexual orientation.

Technical Guidance 3.7

Example: A lesbian pupil undertakes a project charting the history of the gay and lesbian movement as part of her coursework. Her teacher tells her that her topic is inappropriate and that she should keep her personal life to herself. As a result, the pupil is subsequently given low marks for her project. This is likely to be direct discrimination because
of sexual orientation.

Technical Guidance 3.8

Example: A school fails to provide appropriate changing facilities for a transsexual pupil and insists that the pupil uses the boys’ changing room even though she is now living as a girl. This could be indirect gender reassignment discrimination unless it can be objectively justified. A suitable alternative might be to allow the pupil to use private
changing facilities, such as the staff changing room or another suitable space.

Technical Guidance 3.20

A previously female pupil has started to live as a boy and has adopted a male name. Does the school have to use this name and refer to the pupil as a boy?
Not using the pupil’s chosen name merely because the pupil has changed gender would be direct gender reassignment discrimination. Not referring to this pupil as a boy would also result in direct gender
reassignment discrimination.

Technical Guidance 3.36

Example: A member of school staff repeatedly tells a transsexual pupil that ‘he’ should not dress like a girl and that ‘he’ looks silly, which causes the pupil great distress. This would not be covered by the harassment provisions, because it is related to gender reassignment, but could constitute direct discrimination on the grounds of gender reassignment.

Technical Guidance 5.19

For further reading, you might want to take a look at Education Scotland’s resource on Addressing Inclusion – Effectively Challenging Homophobia, Biphobia and Transphobia.

Image by Sharon McCutcheon from Pixabay

Potential Energy (Part 7)

On By Iain NisbetIn Additional Support Needs, ASL Review, Equality Act 2010, Exclusion, School EducationLeave a comment

Following on from the importance placed on relationships and trust as key values and attributes of staff working with children and young people with additional support needs under Theme 5; we now turn to Theme 6: Relationships between Schools and Parents and Carers.

The review begins by affirming the importance of effective working relationships. Where there are “honest and trusting relationships .. characterised by mutual listening and respect” this allows for “sharing views and airing disagreement without conflict.”

Continue reading “Potential Energy (Part 7)” →

Potential Energy (Part 1)

On By Iain NisbetIn Additional Support Needs, ASL Review, Equality Act 2010, InclusionLeave a comment

As promised, and following a delay (for which I apologise), I finally turn my attention to the independent review of the implementation of Additional Support for Learning legislation in Scotland.  The review was chaired by Angela Morgan, and the report, titled “Support for Learning: All our Children and All their Potential” was published in June 2020. A formal response from Scottish Government and COSLA is expected in the Autumn.

There has not been much in the way of commentary on the review, with this interesting article by Alison Brown being a rare example.

I plan to take the same approach as I did with the mainstreaming guidance, which is to consider the report in shorter chunks.  This keeps things manageable for me, and allows for a more in-depth analysis of each section. As always, my focus is on the legal implications.

Continue reading “Potential Energy (Part 1)” →

Mainstreaming, I presume? (Part 10 – Conclusions)

On By Iain NisbetIn Additional Support Needs, Equality Act 2010, Inclusion, School Education1 Comment

So, we have finally reached the end of the Scottish Government’s guidance on the presumption of mainstreaming.  Having gone through it in that level of detail, I have obviously had the opportunity to form a view on it.

Reading through the previous nine articles, you will see that I have some criticisms and some concerns in relation to individual sections.  However, overall, I would say that this guidance is pretty good.

It is well written and well structured.  It provides a useful working definition of inclusive education, through its use of the “four key features of inclusion”.  It is a practical document, which you can actually see education staff, parents and young people making use of in tackling the issues which arise.  The practitioner questions, in particular, are a really useful approach and identify the right questions without dictating an answer in any individual case.  It also valiantly attempts to move the terminology on from “mainstreaming” to “inclusive education / inclusion” while hampered with legislation which bears the crossheading “Requirement for mainstream education”.

So, as I was asked on the facebook page recently …

What’s your stance on presumption of mainstreaming?

A good question.

One of the points to consider here is how well the Scottish legislation (Section 15 of the Standards in Scotland’s Schools etc. Act 2000) implements Scotland’s international obligations (Article 24 of the UN Convention on the Rights of Persons with Disabilities).

But Section 15 was never an attempt to implement the UNCRPD.  Scotland’s presumption of mainstreaming law (passed by the Scottish Parliament in 2000) predates the UN Convention (came into force on 3 May 2008) by several years.

At that time, as far as I know, the leading international source for inclusive education was the UNESCO Salamanca Statement (from June 1994), with its call for children with special educational needs to have access to “regular schools” with an inclusive orientation”.

It is a measure of the speed at which progress was made that less than 15 years later, there was a UN Convention requiring all States Parties (including the UK) to ensure that “[p]ersons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;”  And it is therefore perhaps not surprising that legislation which predates that Convention does not fully reflect its requirements.  Time for a legislative review?

One of the big problems which exists here is with the terminology.  A “presumption of mainstreaming” – is almost tailor made to get parents’ backs up.  Why are you taking important decisions about my child on the basis of a presumption?  Look at them as an individual and make a decision that is best for them!

And look at how it is structured.  A duty on the education authority to ensure that children (subject to the three exceptional exceptions) are provided with school education in schools which are not special schools.  The assumption was that the presumption of mainstreaming was something which parents could use to ensure access to “regular schools”.  Too often, it is something which is imposed on parents against their better wishes.  This is compounded where the provision then does not deliver on reassurances made by education personnel (who may not work within the school in question).

What if the legislative language was not about taking children and deciding where to put them – like some kind of low-grade Sorting Hat?  What if, instead of a duty to place children in mainstream schools, the education authority had a duty to make its mainstream schools inclusive for all pupils?  What if, instead of a duty to put children in local schools, there was a duty to make local schools accessible, inclusive and welcoming for children with disabilities or additional support needs?

The Equality Act 2010 and the (oft-forgotten) accessibility strategies go some way to achieving this – but not far enough.  Just this year, I represented a family who could not send their child to the local school for want of an accessible toilet, which the authority refused to install for cost reasons.  Besides, there was an accessible school not too far away and we will pay for a taxi for you.  This is – as the law stands – perfectly legal.

It is not my role to make suggestions about how we could improve things, but if it were, I might suggest the following:

  1. Review and revise the legislation so that it better reflects Scotland’s obligations under the UN Convention on the Rights of Persons with Disabilities.
  2. Strengthen the Accessibility Strategies process so that schools and authorities take it seriously, and they are externally audited (as they used to be).
  3. Schools should give parents at least an indication of the supports available for their child in advance of attendance.  Being told that the child will attend, and then the school will determine the level of support required is not at all reassuring.
  4. If a child is to attend a mainstream school, the right support and financial backing must be given to allow their full participation in all aspects of the school – after school clubs, school trips etc.
  5. Children and young people should be at the centre of and involved in decisions about their own education.
  6. A diversity of provision – including smaller, quieter schools – would be of benefit to a diverse range of learners.  Those with additional support needs and those without.

Thanks for sticking with me over the course of this ten part series, and for those who have provided useful comments and feedback.

Case summary – AD v. London Borough of Hackney (Court of Appeal)

On By Iain NisbetIn Additional Support Needs, Case summary, Equality Act 2010Leave a comment

The case of AD v. London Borough of Hackney [2020] EWCA Civ 518 was recently heard by the culinary trio of Lords Justice Bean and Baker, and Mr Justice Cobb at the Court of Appeal.  It is the latest in a series of unsuccessful legal challenges to local authority budget cuts affecting (or potentially affecting) special educational needs provision in England and Wales.

Continue reading “Case summary – AD v. London Borough of Hackney (Court of Appeal)” →

Mainstreaming, I presume? (Part 8)

On By Iain NisbetIn Additional Support Needs, Equality Act 2010, Getting It Right For Every Child, Inclusion, Placing Requests1 Comment

The Scottish Government guidance we have been looking at is called “Guidance on the presumption to provide education in a mainstream setting“, and yet it is only now – on page 13 of the document – that we reach consideration of the sometimes thorny issue of deciding on the right provision for a child or young person.

Continue reading “Mainstreaming, I presume? (Part 8)” →