Lawyer’s ‘serious human rights concerns’ over transgender guidance for NI schools

A lawyer has voiced “serious human rights concerns” over guidance given to Northern Irish schools which sets out what to do if a child describes themselves as transgender.

Tuesday, 18th February 2020, 8:00 am
Updated Tuesday, 18th February 2020, 5:32 pm
One of the symbols often used by transgender campaigners

Paul Conrathe made the comments to the News Letter after recently bringing a court challenge against similar guidance in Oxfordshire, England, which lists the kind of facilities such pupils should be able to use.

Transgender campaigners in Northern Ireland meanwhile have described the advice as being “compassionate” and necessary for the “dignity” of such pupils.

Oxfordshire’s “Trans Inclusion Toolkit” says equality law means children should be allowed “to access the toilet that corresponds to their gender identity”.

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The first-ever 'trans pride' march in Belfast in summer 2019; it featured a choir, dancing drag acts, and an address from Sinn Fein Belfast Lord Mayor John Finucane, who condemned a lack of opportunities for citizens to identify themselves as neither male nor female

This means a teenage boy who states they are really a girl should be permitted in girls’ toilets, and vice versa. It says the same when it comes to changing rooms, and sports.

Guidelines issued in Northern Ireland last year by the Education Authority are quite similar in certain respects to the Oxfordshire guidelines which now face challenge.

The NI guidelines (which are not legally binding) talk of teachers drawing up specific plans based on the needs of each individual child, but also state “staff should give a transgender pupil access to toilets which match their gender identity, unless there is a good reason not to do so”.

For changing rooms it says “reasonable efforts should be made to allow a transgender pupil access to changing and other facilities which correspond to their gender identity”. And on sports it says “pupils should be allowed to participate in a manner consistent with their gender identity”.

Revealing details earlier this month of the judicial review in Oxfordshire, the Oxford Mail said it was being brought on behalf of an unnamed 13-year-old girl, whom it quoted as saying: “I have no right to privacy... I don’t understand how allowing boys and girls to share private spaces is okay”.

Mr Conrathe, who works for the firm Sinclairs Law, told the News Letter: “The Oxfordshire challenge is a modest legal claim... we’re very confident that current law does not permit the guidance Oxfordshire County Council has put out to its schools and educational settings.”

He added: “The current guidance in Northern Ireland raises serious human rights concerns, especially for the dignity and privacy and safety of girls. It’s surprising that a legal challenge has not been brought to test whether they comply with the law.”

Meanwhile David Smyth, head of the Evangelical Alliance in NI, said: “We’re aware of and would share some of the concerns teachers and pupils and staff might have around the Education Authority guidelines...

“It’d seem likely that similar challenge could arise in Northern Ireland on the basis of the guidelines published here.”

Tracy Shaw, a spokeswoman for the Safe Schools Alliance which is backing the Oxfordshire judicial review, told the News Letter that whilst her group is based in England, “we’d really hope to see these guidelines [in Northern Ireland] being challenged. We think they need to be challenged and we’d hope there’ll be groups in NI doing so.”

‘THESE GUIDELINES HARM NO-ONE’

Gavin Boyd, policy manager at the Rainbow Project (which advocates for gay, bisexual and transgender people), believes the chance of a successful challenge to the NI guidelines is unlikely.

He said they were “extensively consulted on”, adding: “They are drafted to ensure a child has the right to be educated in dignity and safety.

“Those guidelines don’t negatively affect anyone. Transgender young people have the right to education, they have the right to be known as who they are, and if we want to ensure that all young people have access to a good quality of education that means protecting the rights of all young people.”

Meanwhile, transgender campaigner Frances Shiels offered a personal view of the NI guidelines, dubbing them “very caring, compassionate and positive”.

They said the law already obliges schools to safeguard pupils, adding: “I have no doubt this guidance will elicit much comment and debate.

“The only downside is that it will take brave enlightened leaders to take the initiative to proceed with implementing these guidelines and risk exposing themselves and their organisations to legal challenge from those who don’t fully understand.”

They cited specific points of law to support this perspective, saying that “each and every designated public authority in Northern Ireland [including councils, colleges, universities and health trusts] have a legal responsibility under Section 75 of the Northern Ireland Act 1998 to promote equality of opportunity and good relations in relation to the supply of goods, facilities and services.”

This “does not place such a duty on individual schools”.

However, they said the Addressing Bullying in Schools (NI) Act 2016 provides a “common law duty of care towards all pupils in their care... to safeguard and promote the welfare of all ‘registered pupils’ and to comply with equality and human rights and equality legislation”.

WHAT IS TRANSGENDERISM?

The term ”transgender” does not necessarily refer to people who have undergone a “sex change” operation.

Instead the term is used today to denote anyone who feels their real gender is different to their sex at birth.

For example, campaign group Stonewall says this: “Trans people may describe themselves using one or more of a wide variety of terms, including (but not limited to) transgender, transsexual, gender-queer, gender-fluid, non-binary, gender-variant, crossdresser, genderless, agender, nongender, third gender, bi-gender, trans man, trans woman,trans masculine, trans feminine and neutrois.”

Some transgender people undergo hormone treatment and ultimately surgery, but they can officially get a gender recognition certificate without undergoing either.

However they do have to go through a vetting process and must pledge to live in their “new” self for the rest of their lives. They also have to be diagnosed as suffering from what the NHS calls “a condition where a person experiences discomfort or distress because there’s a mismatch between their biological sex and gender identity”.

Many campaigners believe people should be able to change from male to female (or vice versa) with no vetting.

The government is currently considering allowing this.