What legal rights do you have at school as a trans or gender diverse young person?
Last updated 26 March 2021
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?
Not in New South Wales?
This resource explains your rights in NSW. We also have resources for:
As a trans and 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 legal duty of care to protect students from risks of harm (that the school should be able to anticipate) and to do what is reasonable to ensure you are safe at school, so that you feel safe and protected when you are attending 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, and therefore fail to make the student feel safe at school.
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 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 examples are examples of direct discrimination.
Indirect discrimination occurs where a requirement, condition or practice is applied to all students equally but its application 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 exception does not apply to sporting activities by children who are younger than 12 years old. This could involve refusing or failing to select someone for a sporting team or excluding them from participating in the sporting team.
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 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 in Australia that protect the rights of trans and gender diverse students?
No, but 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
Policies and guidelines are important and do help protect transgender rights 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
Schools should consider individual student circumstances when considering the school’s uniform. Decisions about school uniforms should be consistent with anti-discrimination legislation and not disadvantage any student
When schools are considering how to support a student who has identified as transgender, 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 transgender student should ordinarily use the facilities of their identified gender or unisex facilities where available
School sport: a transgender student to be permitted to participate in most school based sports as their identified gender
This resource was last updated on 26 March 2021. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.