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

26 March 2021

A resource 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:

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

  Not in Western Australia?

This resource explains your rights in Western Australia. We also have resources for:

VIC | NSW | QLD | SA | ACT | NT | TAS | WA

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 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 reassignedbut 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.

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 Western Australia?

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.

Where to get help and more information

  • 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.
  • TransFolk of WA is a support service for all transgender people and their loved ones in Western Australia.
  • The Freedom Centre provides safe social spaces, peer support, information and referral for young gay, lesbian, bisexual, trans, intersex, queer and questioning young people under the age of 26.
  • The Equal Opportunity Commission Western Australia provides a useful guide for schools regarding the legal rights and responsibilities around transgender students in schools.
  • The Commissioner for Children and Young People Western Australia provides useful resources regarding the protection and safety of trans and gender diverse children and young people. 

This resource was published 26/03/2021. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation.

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