Safeguarding the LGBTQIA+ community in schools and colleges

By Jennifer Wright, Public Law solicitor and Ashlee Coates, Medical Negligence solicitor at Irwin Mitchell

Across the UK, schools and colleges are subject to safeguarding duties to protect pupil wellbeing. They’re also required to have anti-bullying policies.

Despite this, there are ongoing issues with LGBTQIA+ youths experiencing homophobic, biphobic and transphobic bullying in their education environment.

A Stonewall report found that:

• 65% of young lesbian, gay and bisexual people have experienced homophobic and biphobic bullying at school

• Almost 100% of young lesbian and gay people hear homophobic and derogatory language in their school

• 58% of those who experience homophobic and biphobic bullying never report it

• 70% of lesbian and gay pupils who experience homophobic bullying say it’s had an impact on their school work

• Half of those who’ve experienced homophobic and biphobic bullying have skipped school because of it

• Over 60% of young lesbian and gay people don’t have an adult they can talk to, at school or at home.

Legal protection for LGBTQIA+ students

Human Rights Act 1998

This Act outlines the rights of all people in the UK. It includes the right to:

• Respect for private and family life (Article 8)
• Freedom from discrimination (Article 14)
• Education (The First Protocol, Article 2).

All of these may be relevant when considering homophobic, biphobic and transphobic bullying. The Act also requires schools to respect and value all of their students.

Equality Act 2010

This Act consolidates all anti-discrimination legislation in Britain in one place. It protects people from unlawful discrimination, harassment or victimisation on the basis of any protected characteristic.

• Sexual orientation is a protected characteristic under the Act, alongside others such as race, sex, gender affirmation, disability, age and so on.
• Gender affirmation is also a protected characteristic under the Act. The protection is open to persons who make a personal decision to move towards changing their gender, regardless of any medical procedures undergone.

Schools cannot deny LGBTQ+ pupils opportunities and facilities that they’d offer to other students, such as the chance to be heads of their year.

The Public Sector Equality Duty (PSED), under the Equality Act 2010

This requires state-funded schools, colleges and settings in England, Scotland and Wales to:

• Eliminate discrimination and other conduct that’s prohibited by the Act. This includes discrimination because of the protected characteristics of sexual orientation and gender affirmation
• Advance equality of opportunity between people who share a protected characteristic and those who don’t
• Foster good relations across all characteristics between people who share a protected characteristic and those who don’t.

The Equality Act doesn’t cover bullying by other pupils as a form of discrimination. But if a pupil was bullied because of their sexual orientation or gender identity, the school must address it as seriously as another form of bullying. If they don’t, this would be discrimination under the Equality Act.

To help meet their legal duties, Stonewall recommends that colleges and schools should:

• Make sure their bullying policies are robust and up to date, and make reporting bullying easy for a student. This’ll  help schools and colleges to tackle all forms of homophobic, biphobic and transphobic (HBT) bullying
• Support lesbian, gay, bi and trans pupils to participate fully in education, including through (Relationships and Sexual Health Education (RSHE) and the wider curriculum. They should promote respect and understanding of LGBTQIA+ people and the issues that affect them
• They should also set specific, measurable and age-appropriate equality objectives, such as reducing levels of HBT language and bullying.

Risks of schools and colleges not taking proper steps about bullying

1. Adverse press coverage

2. Possibility of being held legally accountable. If students have experienced discrimination at their school or college, for example, they may consider bringing a claim in the county court, as long as this is within six months of the act to which the claim relates. Damages can be awarded if their claim is successful.