The Times (£) reports that a husband and wife are threatening legal action after withdrawing their six-year-old son from his Church of England primary school because a boy in his class was allowed to wear a dress to school. (There is a less detailed story in the MailOnline.) He will be schooled at home with his older brother, whom they removed from the same school a year ago when a boy in his class also started wearing dresses. The boys’ parents will argue that the school has acted without due regard to the best interests of their son or other pupils, has failed to consult other parents and has not respected their rights as parents to bring up their children with biblical values.
The husband is quoted as saying that they “believe that it is wrong to encourage very young children to embrace transgenderism. Boys are boys and girls are girls. Gender dysphoria is something we as Christians need to address with love and compassion, but not in the sphere of a primary school environment.”
The school told The Times that it had policies to tackle transphobic behaviour, which included an inability to believe a transgender person was a “real” female or male, refusing to use the person’s adopted name or using “gender inappropriate pronouns” and feelings of discomfort and an inability to trust or connect with someone based on their transgender status. It added that it followed Church of England guidance and that transgender children were protected under the Equality Act 2010, s 7 of which is as follows:
“(1 ) A person has the protected characteristic of gender reassignment if the 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.
(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
(3) In relation to the protected characteristic of gender reassignment—
(a) a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
(b) a reference to persons who share a protected characteristic is a reference to transsexual persons.”
It also said that East Sussex County Council’s guidance on transgender children states that they should not be seen as a problem but “as an opportunity to enrich the school community and to challenge gender stereotypes and norms on a wider scale” [at 1.2].
The couple is being supported by the Christian Legal Centre. The claim appears to be that the Equality Act does not apply to the situation because legal recognition of gender reassignment applies only to those over 18 and that the school is discriminating against the couple by implying that their wish to bring up their sons with biblical beliefs is transphobic.
A spokesman for the Diocese of Portsmouth told The Times:
“Our schools are inclusive, safe spaces where pupils learn to respect diversity of all kinds. We comply with the legal requirements of the Equality Act 2010 and believe that all should feel welcomed, valued and nurtured as part of a learning community.”
Comment: As noted above, the report in The Times suggests that “Lawyers for the couple are likely to say the school is wrong to rely on the Equality Act because legal recognition of gender reassignment applies only to people over 18”. However, s.13 (Direct discrimination) and s. 19 (Indirect discrimination) are both couched in general terms: “A person (A) discriminates against another (B) if …” – and there is nothing in either section about any age-limit below which discrimination may be presumed not to have taken place.
Moreover, the protected characteristic of gender reassignment in s.7 applies to any person who 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” [emphasis added].
Even if eighteen is the minimum age at which one can legally begin the medical and surgical treatment for gender reassignment that will effect the actual transformation, a pre-pubertal child with gender dysphoria may, if appropriate, be given synthetic hormones to suppress the onset of puberty: see the NHS note on Gender dysphoria – Treatment. So it would follow that a child in that situation could be held to be “proposing to undergo” the process of gender reassignment – and it is difficult to see why he or she would not attract the protection of s.7.
So, at the risk of over-analysing the situation, one might reasonably ask whether refusing a boy permission to wear a dress to school could be discriminatory even if the parents of other children have difficulty in coping with it.