In brief - Schools must be aware of their obligations to LGBTIQ students and should prepare for possible changes to the Queensland Anti-Discrimination Act
Ahead of the Queensland Human Rights Commission's review of the State's Anti-Discrimination Act, to be finalised in July 2022, we thought it timely to review the obligation schools hold towards LGBTIQ students. Where schools and education providers have felt the force of public response to notions of gender being prescribed in contracts with children, schools should be considering what might come from this review, what the current obligations are and how to prepare for change in this sector.
Gender identity remains a prominent issue in Queensland's education sector. Seeking to impose terms of enrolment that exclude gender diverse students, or conditions of employment on staff that discriminate against the LGBTI+ community, may not only attract public backlash, but may be unlawful and unenforceable.
Queensland's Department of Education is bound to act lawfully under the Human Rights Act 2019. A state-school student who is not afforded equal access to education on the basis of their gender identity may complain to the Queensland Human Rights Commission (QHRC).
Independent schools are also required to comply with state and federal law, including human rights protections.
Any policy which seeks to discriminate against gender diversity at a school may give rise to claims for breach of human rights protections under anti-discrimination law.
While faith-based schools are excluded from some provisions of anti-discrimination law in respect of enrolling children of a particular faith, that protection does not extend to discriminating against students on the basis of their sexuality, race or gender identity.
Enrolment contracts which require children to agree to comply with certain religious tenants or to outwardly comply with ideas around gender identity may be discriminatory. Such contracts are ultimately unenforceable, as contracts with children (other than contracts for necessities) may not be enforceable.
Terms or conditions which amount to discrimination may also constitute a breach of Non-State Schools Accreditation Board requirements and may give rise to investigation by the Board.
Likely outcomes of the review into Queensland's Anti-Discrimination Act
The Queensland Human Rights Commission is about to hand down its review into the State's Anti-Discrimination Act.
Central to this review is consideration of the legal exemptions, unique to Queensland, that allows an employer to discriminate on the basis of gender identity for the protection of the 'wellbeing' of minors.
It is likely that the review will recommend that such exemptions be abolished, particularly where blue-card background check requirements and screening processes already undertaken on individuals who work with children already determine a person's suitability to work with children.
The review is likely to recommend additional changes to anti-discrimination law in Queensland, to ensure better protection for gender-diverse people and against direct discrimination of people based on gender, religion, race and sex.
What should education employers be prepared for?
Employers are already well versed in making reasonable adjustment to account for illness, disability, parental and carer responsibilities.
The review is likely to recommend that all workplaces, including schools, be required to make adjustments to positively include trans and gender diverse students and workers in the workplace.
What are schools required to do now?
By taking proactive steps to develop a supportive and inclusive culture that affirms gender identity and improves the quality of education, schools will be better prepared to ensure child safety, as well as being prepared for any reforms which may follow the review.
Schools are already required (under WHS and child protection provisions) to protect students from bullying, harassment, discrimination and violence. Where LGBTIQ students are targets of such behaviour, schools should have in place specific protections for these students.
If a school is aware that a student or group of students is subject to bullying, it is time to review your policies, approach and culture as part of assessing and addressing such risks.
Specifically schools should be looking to identify behaviours, including misgendering or deadnaming (calling the person by the wrong name or pronoun) as subtle signs of bullying by staff and students. Strong responses may be needed to call out such conduct to ensure the safety of children in schools. Where action is not taken, schools may find themselves vicariously liable for the discriminatory conduct of teachers and in breach of their duty of care in respect of the conduct of students.
Providing training and positively reinforcing cultural change is an essential part of addressing the risk posed to LGBTIQ children and staff in schools, as is a robust, transparent and accessible complaints management process.
The QHRC provides templates, for example, inclusion policies addressing gender diversity, drawn from Queensland schools that already have them in place. These can be found here.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2023.