Need For Trans-Inclusive Policies in Educational Institutions

Position Paper

by Relentlessly Chase

April 2023

I believe that for transgender people to thrive and succeed, schools must be at the forefront of policy change. When schools adopt inclusive policies, it signals that they are committed to equality and fairness in the treatment of all individuals.

Philippine law provides protections for LGBTI+ students against discrimination and exclusion, and, yet, transgender advocates are receiving thousands of complaints from transgender students forced to comply with anti-trans school policies such as, but not limited to, being forced to wear uniforms that do not match their gender identity and to change the length of their hair on threat of denial of entry to school grounds, expulsion and/or prevention from taking classes and/or exams. Students are also subjected to humiliation, harassment, and other forms of violence and discrimination from teaching staff, non-teaching staff, and other students. Students often report that schools do not take any corrective action when complaints are brought to the attention of school staff.

These undermine the right of trans children and youth to education, and put them at risk of physical, emotional, mental, psychological and financial harm. Trans students often drop out of school which impacts their chances of making a living wage.

Legal Basis

The Philippine Constitution guarantees that all people, including transgender people, have the right to life and liberty, to freedom of expression, to accessible education, and to select a course of study subject to fair, reasonable and equitable admission and academic requirements, among other civil and political rights, because it values the dignity of every human person and guarantees full respect for human rights.

All people, including transgender people, have the right to privacy, a right deserving of constitutional protection according to the Supreme Court in Morfe v. Mutuc. Transgender people have the right to freely express their gender, to make decisions regarding their body and health, and to be free from unreasonable, intrusive and unwanted questioning, and scrutiny of their bodies and personal affairs.

The rights to equality and non-discrimination based on sex or other status are enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic Social and Cultural Rights, international human rights instruments to which the Philippines is a signatory and have been ratified into law.

The Yogyakarta Principles, a set of principles developed by a distinguished group of human rights experts on the application of international human rights law, declares that “sexual orientation and gender identity are integral to every person’s dignity and humanity and must not be the basis for discrimination and abuse”.

Cebu City has two ordinances that protect the rights of people of diverse Sexual Orientation, Gender Identity, Expression, and Sex Characteristics (SOGIESC) - “The Cebu City Anti-Discrimination Ordinance” and the “SOGIESC Equality” ordinance. They recognize the right to dignity, equality, and self-determination of people of diverse SOGIESC. These ordinances prohibit educational institutions from:

a. arbitrarily refusing admission, expelling or dismissing a person,

b. refusing or revoking the accreditation, formal recognition and/or registration of any school org,

c. invasion of personal autonomy and self-development by the imposition of policies such as no cross-dressing and haircut policies, and

d. constraining access to education and learning on the basis of actual or perceived SOGIESC.

Similarly, Mandaue City’s “Anti-Discriminatory Ordinance for People of Diverse Sexual Orientation and Gender Identity and Expression” recognizes the rights of people of diverse SOGIESC and prohibit educational institutions from:

a. arbitrarily refusing admission, expelling or dismissing a person,

b. denying access to student benefits,

c. harassing, bullying, threatening, administering any type of violence, or intimidating a person,

d. providing onerous or unjust terms and conditions for student admission, e. denying or limiting the student’s access to any benefit, and

f. expelling or subjecting any student to any penalty or any other detriment on the basis of actual or perceived SOGIESC.

The Department of Education, in a memorandum released on May 19, 2010, mandated that “the wearing of a school uniform shall not be required in public schools”. This means that trans students enrolled in the K-12 Program in a public school cannot be forced to wear any gendered uniform as they cannot be forced to wear any uniform, period.

Presidential Decree 603, The Child and Youth Welfare Code, declares that the welfare of children and youth below twenty-one years of age is paramount. Schools are integral to the welfare and development of children and must provide education in an environment that allows the child to grow as a free individual, and protected against conditions prejudicial to their physical, mental, emotional, social and moral development.

Republic Act 7610, the Special Protection of Children Against Abuse, Exploitation and Discrimination Act, reiterates the state’s policy of promoting the welfare of children and that the best interest of the child shall always be paramount consideration in all actions concerning them by providing them special protection from abuse and discrimination. Under this act, child abuse is the maltreatment of the child, whether habitual or not. This includes psychological and physical abuse, neglect, cruelty, emotional maltreatment, and any act by words or deeds which debases, degrades or demeans the intrinsic worth and dignity of a child.

Republic Act 10627, the Anti-Bullying Act, in its Implementing Rules and Regulations prohibits gender-based bullying, any act that humiliates or excludes a person on the basis of perceived or actual sexual orientation and gender identity (SOGI).

Republic Act 11313, the Safe Spaces Act, places a duty on schools to provide a gender-sensitive environment, and investigate all gender-based sexual harassment, including, but not limited to, transphobic slurs, persistant uninvited comments or gestures on a person’s appearance, relentless requests for personal details and sexual comments, through a Committee on Decorum and Investigation that shall be equally represented by persons of diverse sexual orientation, gender identity, and expression (SOGIE).

Republic Act 11036, The Mental Health Act, defines discrimination as any distinction, exclusion or restriction which has the purpose or effect of nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.

Medical Basis

Many transgender people suffer from gender dysphoria which is a condition characterized by clinically significant distress or impairment in social, occupational or other important areas of functioning caused by the incongruence between one’s inner sense of gender and sex characteristics, strong desire to be rid of one’s sex characteristics because of aforementioned incongruence, a strong desire for the sex characteristics of the other gender, a strong desire to be of the other gender, a strong desire to be treated as the other gender, and/or a strong conviction that one has the typical feelings and reactions of the other gender.

Gender dysphoria is a condition recognized by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-V-TR), a text based on scientific literature with contributions from more than 200 subject matter experts. It is the handbook used by healthcare professionals in much of the world and considered the authoritative guide to the diagnosis of mental conditions.

The World Professional Association for Transgender Health (WPATH), an association with over 3,000 healthcare professionals, social scientists, and legal professionals, published the Standards of Care for the Health of Transgender and Gender Diverse People, a document based on the best available science and expert professional consensus, confirms the necessity of social, mental and medical gender-affirming care, and the importance of equitable access to education, health, work and housing, freedom of movement and expression, privacy, security, life, family, liberty, fair trial and humane treatment for transgender and gender diverse people.

Gender-affirming care, as defined by the World Health Organization (WHO), “can include any single or combination of a number of social, psychological, behavioral or medical (including hormonal treatment or surgery) interventions designed to support and affirm a person’s gender identity”.

The Psychological Association of the Philippines, in a 2020 statement, said that attempts to change a person’s sexual orientation, gender identity, and/or expression is not only ineffective, but actually harmful to the individual.

The policy of schools forcing students to dress, appear, and act in a manner based on genitalia promotes outdated and stereotypical notions of gender, discriminates against and harms the mental health of transgender students who suffer from gender dysphoria, promotes harmful attitudes towards people of diverse SOGIESC, and is contrary to international, national, and local laws.

It is in the best interest of educational institutions to change their policies to make education accessible to all persons regardless of their SOGIESC in compliance with the law.

Recommendations

For the Department of Education

To recognize the rights of transgender students to life, liberty, to freedom of expression, to accessible education, to select a course of study subject to fair, reasonable and equitable admission and academic requirements, and to self-determination.

To conduct or mandate capacity-building and sensitization programs on SOGIESC for all teaching and non-teaching school personnel in both public and private basic education institutions.

Issue an administrative order requiring public and private school administrators to respect students’ SOGIESC through the implementation of inclusive school policies.

To conduct regular spontaneous inspections of basic education institutions and their heads to ensure compliance with relevant laws and regulations.

For the Commission on Higher Education

To conduct or mandate capacity-building and sensitization programs on SOGIESC for all teaching and non-teaching school personnel in both public and private higher learning institutions.

Issue an administrative order requiring public and private school administrators to respect students’ SOGIESC through the implementation of inclusive school policies.

To conduct regular spontaneous inspections of higher learning institutions and their heads to ensure compliance with relevant laws and regulations.

For TESDA

To conduct or mandate capacity-building and sensitization programs on SOGIESC for all teaching and non-teaching school personnel in TESDA accredited schools, training centers, and assessment centers.

Issue an administrative order requiring school administrators to respect students’ SOGIESC through the implementation of inclusive school policies.

To conduct regular spontaneous inspections of institutions and their heads to ensure compliance with relevant laws and regulations.

For PAASCU

To make gender-responsiveness and gender-sensitivity an integral standard of student services programs and support to promote the personal well-being of the studentry.

To review the compliance of schools with local, national, and international laws before they are granted institutional accreditation.

For Basic Education and Higher Learning Institutions

To review and revise existing policies so that they are responsive and sensitive to the needs of all students regardless of their SOGIESC.

To conduct capacity-building and sensitization programs on SOGIESC for teaching and non-teaching school personnel.

For Local Government Units

To conduct regular spontaneous inspections of institutions and their heads to ensure compliance with relevant laws and regulations.

For the Philippine Congress

Pass a specific and comprehensive law that addresses all forms of SOGIESC-based discrimination.

Recommended Educational Institution Policies

Uniform

Option A: Allow students to choose the uniform that aligns with their gender identity.

Option B: Implement a gender neutral uniform for all students.

Option C: Do away with uniforms and implement a gender neutral dress code.
Note: To require a transgender person to undergo hormonal or surgical interventions is a violation of their right to decisional privacy.

Dress Code

Implement a gender neutral dress code that applies to all students regardless of gender. For example, if women may wear earrings, so should all other students. If women have the option to wear skirts, all students should be given the same option.

Haircut / Hairstyle
Policies on hair length and styles should be gender neutral and apply to all students.

Toilets and other Gendered Spaces

Transgender students should be allowed to enter the restroom or other gendered space where they feel most comfortable or schools should provide gender neutral restrooms in at least every other floor in every building. Gender neutral restrooms can be provided in existing structures by simply relabeling gendered restrooms as restrooms with urinals and restrooms without urinals. The use of restrooms should not be policed.

Note: We use gender neutral restrooms all the time at establishments like coffee shops. It has been years since countries, states, cities, and establishments have adopted gender neutral restrooms or made the policing of restrooms illegal, and no evidence has ever surfaced that adopting trans-inclusive restroom policies increases safety risks (Gender Identity Nondiscrimination Laws in Public Accommodations: a Review of Evidence Regarding Safety and Privacy in Public Restrooms, Locker Rooms, and Changing Rooms, UCLA School of Law). In fact, the opposite is true - in places that have anti-trans restroom policies, transgender teens face higher risks of sexual assault (Transgender teens with restricted bathroom access at higher risk of sexual assault, Harvard School of Public Health).

IDs, Nametags, Names, and Pronouns

○ IDs and nametags should reflect a trans person’s lived name. However, official school records such as the transcript of records should reflect a trans student’s birth name if this has not been officially changed.

○ Teaching and non-teaching staff should address trans students by their lived name and avoid revealing their transgender status, an act considered an invasion of privacy.

○ Teaching and non-teaching staff should address trans students by their personal pronouns.

Note: Lived name. Transgender people often adopt a name different from their name assigned at birth to reflect their gender identity. This is their lived name. Personal pronouns. As a general rule, trans men should be addressed with he/him pronouns and trans women addressed with she/her pronouns. However, everyone’s personal pronouns are different. It is helpful to introduce your own pronouns before asking for someone else’s.

Policy on Non-Discrimination

Schools must make clear that all forms of bullying, harassment and violence, including those that are based on SOGIESC, against students, teaching staff and non-teaching staff by students, teaching staff and non-teaching staff is against school policy, and subject to investigation and sanctions.

There must be a reporting mechanism, an investigating body, and sanctions for violations.