Forcing non-binary students to choose “male” or “female” on application forms leaves schools and colleges at “massive risk” of legal action, an expert has warned.
The forms that students pursuing further education must complete force them to choose a binary sex option – and non-binary students to misgender themselves.
This includes on the individualised learner record (ILR) that further education providers must fill in with a student’s information so they can access funding.
This is a policy set by the Education and Skills Funding Agency (EFSA), an “arms-length” official body sponsored by the Department of Education.
But the practice puts further education institutions at “massive risk” of legal action under the Equality Act 2010, said Emma Lambert of independent provider Dynamic Training.
“The ESFA’s old fashioned attitude to gender identities not only risks damaging the provider reputation, but it will undoubtedly end up in complaints and possibly legal action, which will be left with the provider to deal with,” Lambert told FE Week.
Dynamic Training, which provides apprenticeships for NHS nurses and skills courses for the Greater London Authority, asks its learners which pronouns they use and manually enters these into the documents.
However, Lambert explained, “there’s no way on the ILR system you can put anything other than male or female”.
She said she is “frustrated” by the lack of action from EFSA on this both because of the risk to providers and because she thinks “it’s wrong anyhow” not to allow students to select the correct gender for themselves.
Lambert added that Dyamic Training has raised this with EFSA multiple times, but only received non-committal answers.
Further education is the band describing education for students in the UK who are over the age of 16 but before degree-level, or higher, education.
Non-binary recognition part of ‘societal change’
While the Equality Act 2010 specifically protects those undergoing or proposing to undergo some form of gender reassignment, whether that protection extends to non-binary trans people has been unclear – until recently.
Last year, a landmark case won by a non-binary person against Jaguar Land Rover affirmed that non-binary and genderfluid people are protected from discrimination under the “gender reassignment” provision of the Equality Act 2010.
Another landmark case for non-binary rights, also last year, saw a court decide that being non-binary can be grounds for an asylum claim in the UK.
This progress, 11 years since the Equality Act was introduced, means it “seems timely for those characteristics protected by law to be reviewed and expanded in light of over a decade of societal change”, said Association of Colleges boss David Hughes.
Hughes added that while EFSA and the Department of Education are “working within limitations”, the challenge of including non-binary gender options on forms should not be “insurmountable”.
PinkNews contacted EFSA and the Department of Education for comment.
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