Issues of disability discrimination and lesbian, gay, bisexual, transgender, and intersex (LGBTI) discrimination in schools can present varied and complex problems for the school, the student and parents alike.
The legal rights and obligations in this area of law are complex and, when one adds the emotion of dealing with an unhappy child and a disgruntled parent, we have a recipe for disagreement in our schools.
Direct and Indirect Discrimination
The disability standards for education were introduced some 12 years ago and supplement the Disability Discrimination Act 1992 (DDA). The standards apply specifically to education providers. One of the main concepts introduced by the disability standards was a requirement for all education providers to make ‘reasonable adjustments’ to enable students with disabilities to participate in and obtain access to facilities and services on an equal basis.
Discrimination can be either direct or indirect. Direct discrimination is where a student with a disability is treated less favourably than a student without the disability in circumstances that are the same or not materially different. Indirect discrimination is where a discriminator requires a student to comply with a conditional requirement and, because of their disability, the student cannot comply and so the effect of the condition or requirement is to disadvantage the student even though it appears at first blush to be neutral. An example might be requiring all students in a PE class to attempt a high jump which would not be possible for a student with significant physical disabilities.
Issues of direct or indirect discrimination also readily arise in cases of LGBTI students. According to Beyond Blue, LGBTI students have the highest rate of suicide out of any group in Australia. They also have the highest rate of bullying, victimisation and vilification.
The most common issues with regard to LGBTI students arise in respect of:
- How their name and gender are to be recorded on enrolment records.
- What school uniform they are to wear.
- What toilets and changing facilities are available to them.
- What sporting activities they may participate in, particularly when over the age of 12 years.
- What sleeping arrangements are appropriate for school camps.
I have over 30 years’ experience advising and working with schools and parents. Please do not hesitate to contact me directly if you would like to discuss or have any questions about discrimination issues in your school.