What legal rights do you have at school as a trans or gender diverse young person?

What is this resource?

This resource is for trans and gender diverse young people and their families in NSW.

This fact sheet answers some common questions trans and gender diverse young people, and their families, have about their rights at school in relation to school uniforms, bathrooms, camps and sports teams.

By reading this resource you will get a better understanding of your rights at school in New South Wales.

This fact sheet includes:

• What counts as discrimination?
• What can you do if you are discriminated against?
• What laws protect trans and gender diverse young people?

You have rights

As a trans and/or gender diverse student in Australia, you have the same rights and protections under the law which are afforded to all students. The Sex Discrimination Act 1984 (Cth) prohibits discrimination in public life on the basis of gender identity. The Anti-Discrimination Act 1977 (NSW) provides protections on the basis of a person’s sexual orientation and on the basis of being transgender but does not refer to gender identity. 

Schools have a duty of care to students and must take reasonable steps to protect students from foreseeable risks of harm at school. Despite these obligations, it can still be daunting to navigate the different gendered facilities and activities at school. For example, wearing a gendered school uniform, using gendered bathrooms, going on school camps and participating in school sports teams. 

Further, many trans and gender diverse students have found their schools to be unsupportive of their gender status. 

What is discrimination at school?

Generally speaking, discrimination means treating (or proposing to treat) someone unfairly or less favourably than others because of one or more of their personal characteristics. This can happen in different places and contexts, and may be direct or indirect.

Discrimination is only against the law when it happens in an area of public life, including in education. This means it is against the law for schools and teachers to discriminate against you, either directly or indirectly, on the basis of your gender identity.

What counts as discrimination?

It is discriminatory, and therefore unlawful, for a school to treat you lIt is discriminatory, and therefore unlawful, for a school to treat you less favourably than other students because you are trans and gender diverse, such as by: 

• Refusing or failing to accept your application for admission as a student 

• Only admitting you as a student on certain terms (that would not otherwise apply) 

• Denying you access, or limiting your access, to any benefit provided by the school 

• Expelling or subjecting you to any disadvantage 

The above are examples of direct discrimination.  

Indirect discrimination occurs where a requirement, condition or practice is applied to all students equally, but when applied is likely to have the effect of disadvantaging students with a particular characteristic (and it is not reasonable).    

Are there any exceptions?

Yes, there are some exceptions. 

For example, it is usually not against the law to discriminate against someone in competitive sporting activities on the basis of their gender identity where some competitive advantage may be gained because of a disparity between relative strength, stamina or physique of competitors.  This could involve refusing or failing to select someone for a sporting team or excluding them from participating in the sporting team. This exception does not apply to sporting activities by children who are younger than 12 years old. 

Another example is that a single-sex school may refuse to accept your application for admission if you are not of the same sex that the school operates for. 

There are also some exceptions that may apply to religious schools. Some discrimination laws allow conduct by religious schools that would otherwise be considered discriminatory. As a result of these exceptions, it may be possible for religious schools to treat students differently on the basis of their gender identity in some circumstances. If you have any questions about this, consider contacting the AHRC or Department of Education. 

What can you do about gender discrimination at school?

If you are being discriminated against by a school and/or teacher because you are trans and/or gender diverse, you have the right to make a complaint or take legal action. Take a look at our fact sheet on dealing with gender discrimination. 

Are there any laws or policies in Australia that protect the rights of trans and gender diverse students at school?

Education policies and guidelines exist which address aspects of schooling for trans and gender diverse students such as: 

• changing your name/gender used at school 

• school uniforms 

• bathrooms 

• school camps 

• sports teams 

Policies and guidelines are important and do help protect the rights of trans and gender diverse students at school. Some states have started to implement policies in line with broader anti-discrimination legislation. However, they don’t carry the same authority as legislation. 

The policies that guide schools vary depending on which state or territory you live in, as well as which school you go to. 

What about in NSW?

The NSW Department of Education has provided the following guidance to public schools and teachers in relation to trans and gender diverse students:

• While students under the age of 18 are enrolled according to the name on their birth certificate, they may change their name on existing records where a birth certificate has been issued in the new name or a signed consent from both parents approving use of the new name is provided 
• Students may change the way their first name is recorded and used with the consent of both parents. If one parent disagrees, the principal needs to make a decision about what is in the child’s best interests (on the basis of the age, capability and maturity of the student and advice from the child’s doctor). Records can be updated to reflect the student’s identified gender at the time the name is changed. The pronoun used should then be consistent with the gender recorded by the school 
• Many schools have developed unisex uniforms that are not gender specific. Trans and/or gender diverse students should be allowed to choose from the uniform options available at the school.  
• When schools are considering how to support a student who has identified as trans and/or gender diverse, it is important for them to talk to the student and their parents or carers, where possible. The student’s safety and wellbeing should always be considered in relation to activities they will be involved in and facilities they will access at school. For example: 
  • Toilets: students should not be required to use the toilets and change rooms used by persons of the sex they were assigned at birth if they identify as a different gender 
  • Excursions including overnight excursions: a trans and/or gender diverse student should ordinarily use the facilities of their identified gender or unisex facilities where available 
  • School sport: a trans and/or gender diverse student may be permitted to participate in most school based sports as their identified gender 
    
    

Where to get help and more information

• Justice Connect has a fact sheet on How to deal with gender discrimination. 
• Parents of Gender Diverse Children provides peer support nationally to parents and those parenting trans and gender diverse children. To access their resources or make an enquiry, visit their website. 
• The ICLC Trans and Gender Diverse Legal Service provides legal information, advice and assistance. To make an appointment, call (02) 9332 1966 or visit their website for more information. 
• The Gender Centre offers a wide range of services to people with gender issues, their partners, family members and friends in New South Wales. 
• The NSW Department of Education provides a useful guide for schools regarding the legal rights and responsibilities around transgender students in schools. 
• Twenty 10 provides a range of support services and social spaces for people of diverse genders and sexualities aged under 26 in NSW and some parts of the ACT.