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

You have rights

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 Equal Opportunity Act 1984 (SA) and the Sex Discrimination Act 1984 (Cth) prohibit discrimination in public life on the basis of 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

• school uniforms

• bathrooms

• school camps

• sports teams

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 South Australia?

The South Australian Department of Education and Child Development’s Gender Diverse and Intersex Children and Young People Support Procedure has provided the following guidance to public schools and teachers in relation to trans and gender diverse students:

• Schools should record and use the preferred pronoun of a trans student, regardless of enrolment information. If the parent/guardian does not support using the student’s preferred name the school must consider the welfare and best interests of the young person as outlined by the policy

• 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, both at school and while on excursion or a camp

Excursions: schools should complete a risk assessment prior to excursions or camps to ensure trans and gender diverse students are supported. Students should be allowed to sleep in an area that corresponds with their gender identity if the camp includes an overnight stay

School uniform: a transgender student should be allowed to choose from the uniform options available at their school. This includes sports uniforms

School sport: a transgender student to be permitted to participate in most school based sports as their identified gender before they reach the age of 12. While it may be lawful to exclude students aged 12 and over from competing in sport as their identified gender in the context of elite competitive sports, full and inclusive participation should be the school’s ultimate goal. Schools should seek legal advice from the Department of Education and Child Development before preventing any student from competing in a sport with their identified gender.

Where to get help and more information

• The South Australian Department of Education provides a useful guide for schools regarding the legal rights and responsibilities around transgender students in schools.

• Justice Connect has a fact sheet on How to deal with gender discrimination for trans and gender diverse young people and their families.

• 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 the PGDC website.

• Shine SA provides primary care services and education for sexual and relationship wellbeing.

• Trans Health SA offer the South Australian gender diverse community a resource operated, and influenced, by the community.

• Uniting Communities provides mental health support & counselling to the LGTIQA+ community.

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