17 November 2017

In an ongoing case in the United States, the parents of Nikki Brar, an eight year old transgender girl, are suing their daughter’s private school for refusing to recognise her preferred gender identity and to allow her to wear the designated girls’ uniform and use the female toilets, and stop being addressed with male pronouns. We are seeing discrimination in education against transgender students challenged more and more, not only by transgender students themselves and their parents, but also by lawmakers and legislators in certain countries where this recognition of rights on the basis of gender identity is being supported by national level application of non-discrimination law.

Equality and non-discrimination are foundational principles of international human rights law where there is a longstanding prohibition against discrimination on the basis of sex. This prohibition is applied specifically to the field of education by the Unesco Convention against Discrimination in Education (1960, CADE) which stipulates that any and all forms of discrimination in education are prohibited, including on the basis of sex. Increasingly, however, interpretation of non-discrimination law has recognised the unequal treatment of individuals on the basis of gender identity as well as biological sex.

The Committee on Economic, Social and Cultural Rights' General Comment 20 explicitly states that ‘gender identity is recognised as among the prohibited grounds of discrimination; for example persons who are transgender, transexual or intersex often face serious human rights violations, such as harassment in schools’ (General Comment 20, para. 32).

The Committee on the Elimination of Discrimination Against Women has also recognised gender identity as grounds for discrimination in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The Committee’s General Recommendation 33, (para. 8) recognises that ‘discrimination against women is compounded by intersecting factors that affect some women to degrees or in ways that differ from those affecting men or other women. Grounds for intersecting or compounded discrimination may include...identity as a lesbian, bisexual or transgender woman or intersex person.’ And in its most recent General Recommendation 35, on gender-based violence against women, the Committee recommends states repeal all legislative measures that are ‘discriminatory against women and thereby enshrine, encourage, facilitate, justify or tolerate any form of gender-based violence. In particular provisions that...allow, tolerate or condone forms of gender-based violence against women, including...provisions that criminalise...being lesbian, bisexual or transgender’ (General Recommendation 35, para. 29).

Confusion can arise around the distinction between sex and gender, so it may be helpful to define what is meant by these terms, as wells as ‘gender identity’, ‘transgender’, ‘transexual’, and ‘cisgender’. All but the last of the definitions used here are taken from the glossary in the comprehensive Unesco report Out in the open: Education sector responses to violence based on sexual orientation and gender identity/expression:

  • Sex is the ‘classification of people as male, female or intersex, assigned at birth, based on anatomy and biology’, while ‘gender’ is ‘the social attributes and opportunities associated with being male and female and the relationships: between women and men and girls and boys; and between women and between men. These attributes, opportunities and relationships are socially constructed and are learned through socialisation processes’.
  • Gender identity is ‘[a] person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned to them at birth. This includes the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.’
  • To identify as transgender is to be ‘[a] person whose gender identity differs from their sex at birth. Transgender people may be male-to-female (female identity and appearance) or female-to-male (male identity and appearance).’    
  • To be transexual is to be ‘[a] transgender person who is in the process of, or has undertaken, treatment (which may include surgery and hormonal treatment) to make their body congruent with their preferred gender’.
  • Finally, cisgender is defined by the Oxford English Dictionary as ‘designating a person whose sense of personal identity corresponds to the sex and gender assigned to him or her at birth’.

The ability of transgender students to fully enjoy their right to education is impacted in a variety of ways. Most commonly, we see not only deliberate harassment and discrimination by teachers and fellow students leading transgender students to drop out of school, but also the exclusion of transgender students from education by being denied the opportunity to wear the school uniform or use the toilets congruent with their gender identity.

It is a positive development that over recent years, a number of countries have demonstrated progress in translating the right to non-discrimination in education into legislation, thereby ensuring transgender students are free to enjoy their right to education. There has also been a spate of cases in courts around the world ruling favourably for the equal rights of transgender people.

For example, in 2016 a case was successfully taken to the Constitutional Court in Colombia. Erika Comas Gómez, a transgender boy, argued that his right to education was being infringed as his school would not allow him to wear the male uniform nor would they address him according to the gender he identifies as, until he changed his name on his official student identification card. The Colombian Constitutional Court ruled that this requirement was an unnecessary impediment to his enjoyment of the right to education in a way which respected his gender identity.

Further, in the United States in 2016, the Transgender Law Center secured a change to school policy in Horry County, South Carolina. The Center sent a letter to the education board on behalf of a transgender male student who was suspended from school after a teacher saw him using the boys’ toilets. Subsequent to the change in policy, the county superintendent of education stated that in future all transgender children will be able to use the toilets consistent with their gender identity.

Positive moves are also being seen in UK schools to accommodate the legal rights of transgender children to express their gender identity. These include teachers’ unions calling for more and better training on how to support children who transition while at school, and the NASUWT union publication Trans Equality in Schools: Advice and guidance for teachers and leaders to help schools and colleges support not only pupils but also teachers who transition.

In Argentina, following legislation that came into force in 2012 recognising the right to gender identity based on personal expression, lawmakers in the country’s capital, Buenos Aires, are currently discussing draft legislation that specifically includes provision for transgender people to be free from discrimination in order that they may enjoy their right to free, compulsory and secular education. And in India, a 2014 Supreme Court ruling created the official third gender status for transgender people who were also afforded the classification of ‘protected status’ as an economically weaker category of the population, under the 2009 Right to Education Act. This means that not only can transgender students not be excluded from school on the basis of their gender identity, they also enjoy special measures including the guarantee that private schools will reserve a minimum of 25% of places in each class to children from disadvantaged groups.

Some of the most significant legislative steps taken recently have been seen in Chile and Pakistan, the latter being in the process of approving a private members’ bill for the protection and welfare of transgender people. The Transgender Persons (Protection of Rights) Act 2017 was drafted by the Pakistan National Commission on Human Rights, following broad consultation including with NGOs and civil society organisations and is intended to reflect the legal interpretation of international legal mechanisms. Amongst other areas of life, the Act specifically targets discrimination in education with the aim of preventing transgender children from missing out on or not completing their education.

In the case of Chile, in May 2017 the Chilean education authority (Mineduc-in Spanish) sought to explicitly address discrimination against transgender students in the national school system by sending out guidelines to schools (in Spanish) and other educational establishments promoting the rights of transgender students, their acceptance into and support by the national school system on an equal footing with all students. These guidelines expressly forbid schools from discriminating against students on the basis of gender identity, for example through tolerating any form of bullying and harassment, or by excluding them through not allowing students to wear the uniform or use the toilets that match their gender identity.

Substantial progress is being made in different regions of the world to translate the rights of transgender students to non-discrimination in education into a daily reality for them. However, such freedoms are being challenged by some. Conservative Spanish Catholic group Hazte Oir has used what they call their ‘Freedom Bus’ to try to disseminate what are viewed by many as openly transphobic messages throughout Spain, the United States, and Latin American countries including Chile. And in February 2017, the Trump administration in the United States withdrew guidance issued by the Obama administration relating to the Title IX education amendments to the 1964 Civil Rights Act, which extended protections afforded by Title IX on the basis of sex extended to include gender identity. The Trump administration, in withdrawing the guidance, stated that the Department of Education needed to ‘more completely consider the legal issues involved’. Therefore, despite significant progress, particularly in the legal recognition, at both the international and national levels,of gender identity as grounds of discrimination, there is still a long way to go until the right of transgender students to education on the basis of non-discrimination is universally respected.