Pride and Prejudice

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