What legal rights do you have at school as a trans or gender diverse young person?
Last updated 26 March 2021
Last updated 26 March 2021
This resource is for trans and gender diverse young people and their families in Tasmania.
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 Tasmania.
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?
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 Anti-Discrimination Act 1998 (Tas) 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.
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.
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).
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.
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.
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.
The Tasmanian Department of Education published the Guidelines for Supporting Sexual and Gender Diversity in Schools and Colleges (Tas Guidelines). The Tas Guidelines encourage schools to create an inclusive, supportive learning environment and to combat discrimination, harassment and bullying based on sexual orientation and gender identity.
The Tas Guidelines make specific recommendations for schools, such as ensuring curriculum contains appropriate content in relation to LGBTI students and developing school policy that affirms sexual orientation and gender diversity. They do not make recommendations in relation to use of toilets, uniforms, sport or camps.
Justice Connect has a fact sheet on How to deal with gender discrimination available online.
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.
Working it Out is a Tasmanian-based gender and sexuality support and education service. It provides direct support, including free and confidential counselling, support groups, education programs and workplace training.
The Tasmanian Department of Education provides a useful guide for schools regarding the legal rights and responsibilities around transgender students in schools.
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.