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 WA.
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 Western Australia.
This fact sheet includes:
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 Equal Opportunity Act 1984 (WA) offers protections on the basis of sexual orientation and ‘gender history’ (where someone has had their gender reassigned) but not 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:
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:
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 Western Australian Equal Opportunity Commission published the Guidelines for supporting sexual and gender diversity in schools to assist schools and students. The Guidelines recommend that schools consider issues relevant to transgender students, including that gender-neutral uniform options be made available to all students.
Beyond this document, there are no further policy guidelines for catering for the needs and interests of trans and gender diverse students in public schools in Western Australia.
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.