Among children and young people with EHCPs, a proportion will identify as transgender, which has introduced new considerations for Local Authorities. The case of AI, R v London Borough of Wandsworth brings to attention the discrimination and challenges faced by transgender individuals with SEND. It also underscores the implications for LA’s statutory duties when children or young people with SEND, including those that are transgender, face discrimination.
Background to AI v London
AI, a 22-year-old transgender person with SEND, brought a claim against an LA. This was on the basis that the LA failed to meet its Public Sector Equality Duty (‘PSED’) under Section 149 the Equality Act 2010 regarding his needs as a transgender individual with an EHC Plan.
AI argued that breakdowns in multiple placements were partly due to misgendering and discrimination. As a result, there were periods during which accessing the provision in the EHCP was disrupted. The LA failed to provide any evidence of enquires made in compliance with PSED since 2010. Had it done so, it would have better understood why the breakdowns were taking place and appropriately respond.
However, the LA argued that PSED is encompassed within the detailed and individual provision within an EHCP. In this case, gender reassignment was noted in the EHCP. Therefore, a separate consideration under Section 149 of the Equality Act 2010 is unnecessary. Further, that the evidence did not support the argument that misgendering was the primary cause of the LA’s alleged failures. At the times when breakdowns in services occurred under the EHCP, neither AI nor anyone else cited misgendering as a reason.
Judgement
The claim ultimately failed because:
The LA had duly considered AI’s requirements and experiences;
No event occurred or was brought to the LA’s attention that should have led it to monitor or investigate transgender children or young people with SEND;
In the circumstances, it was not unreasonable for the LA not to make any further inquiries as to misgendering or transgender issues;
Evidence did not demonstrate that misgendering was the cause of AI’s placement breakdown;
Any unintentional misgendering that did occur did not indicate any failure by the LA regarding its duty to AI;
Practical Points
This case clarifies clear that an LA does not need to separately consider Section 149 in addition to Section 42. The Appeal Court agreed with the LA that if an EHCP has been provided after consideration of an individual’s needs and characteristics, including disabilities, the LA has taken steps to eliminate discrimination and promote equality of opportunity between individuals. Further, Section 42 is an absolute duty unaffected by any protected characteristic of an individual.
Where evidence indicates that transgender children or young people with EHCPs maintained by an LA are experiencing discrimination or disadvantage because of the characteristic, there may be an obligation to monitor transgender children and young people with EHCPs. This is to ensure the protection of any cohort of individuals with EHCPs. Draft guidance on supporting transgender children in schools, which includes five principles, can be referred for direction.