CRITICAL ANALYSIS of NSW Department of Education Bulletin 55 – Transgender Students in Schools

CRITICAL ANALYSIS of NSW Department of Education Bulletin 55 – Transgender Students in Schools

By Katherine Deves

This article is in response to deep concern caused by the proliferation of gender identity ideology that is being taught in our schools. Bernard Lane, the investigative journalist at The Australian, is the only mainstream journalist in Australia willing to cover this contentious issue1.

In NSW, Bulletin 55 (referred to as “the document”) is the official policy of the Department of Education in relation to trans-identified (“transgender”) students. It was conveniently published in December 2019 just before the holiday break, and it is in the keeping with the IGYLO strategies designed by global law firm Denton’s for the regulatory and institutional capture by gender identity ideology lobbyists. The timing was likely purposeful in order to avoid any media scrutiny or public debate in implementing such policy and legislation that favourable to the efforts of these ideologists, as it is favoured tactic to achieve that aim when it likely would be rejected or criticised by the vast majority of the general public had they been made aware.

The document contains a number of discriminatory and alarming policies:

• It deliberately conflates ‘sex’ with ‘gender’, and omits to refer to the single-sex exceptions contained in the Sex Discrimination Act 1984 (Cth);
• It continually prioritises one protected characteristic (‘gender identity’) over others, contrary to Commonwealth sex discrimination legislation;
• It fails to satisfy Australia’s international treaty obligations under CEDAW Art.10 in relation to education;
• It fails to meet basic safeguarding requirements by promoting mixed-sex changing rooms and residential accommodation;
• It treats concerned parents as a safeguarding risk;
• It disregards the rights of all pupils to safety, privacy and dignity in single sex spaces;
• It disregards the rights of teenage girls to compete in sports on a level playing field as per Sex Discrimination Act 1984 (Cth) s 42, Anti-Discrimination Act 1977 NSW s38 and CEDAW Art. 10(g).

1 https://www.theaustralian.com.au/author/Bernard+Lane

Reliance on Erroneous and Ideologically Informed Language

The policy begins by upholding the ideological stance that sex is “assigned” at birth. This is factually untrue, sex is observed and recorded at birth. Sex is determined at fertilisation with the absence or presence of the Y chromosome and SRY gene, with observation in utero possible from the beginning of the second trimester, and via genetic testing from 7 weeks via a blood test of the mother. The word “assigned” has been co-opted by gender ideologists from the now outdated practiced of “assigning” a sex to an infant born with ambiguous genitalia due to a Disorder or Variation of Sex Development. The current protocol for such a situation is that scans and a blood test are conducted in order to ascertain the sex of the infant, as Disorders of Sex Development conditions (colloquially known as “intersex”) are conditions that arise from either one sex or the other.

In relation to birth certificate, the document erroneously refers to “gender”, because it is “sex” (not “gender”) that is recorded on the document, and this opens up the broader implications of people being able to retrospectively alter a core identity document to reflect a factually untrue status.

The document repeatedly refers to “gender”, “gender identity” or “gender expression”, without including a definition within the document. “Gender identity” has been defined in federal legislation2, and is based on a definition promulgated in the Yogyakarta Principles3. The concept of “gender identity” is unable to be defined without resorting to circular reasoning and relies on offensive and restrictive gender stereotypes (i.e. a little boy likes “Frozen” and wants to grow his hair therefore IS a girl, instead of just being a child who may be gender non-conforming, or is simply exploring his personality as a normal part of child development), which is contrary to the Sex Discrimination Act (Schedule) and CEDAW Art.5(a) where sex based stereotypes are specifically rejected in order to eliminate prejudice.

Toilets and Change Rooms

“The need for the student to be safe is a paramount concern in these circumstances. Students should not be required to use the toilets and change rooms


2 Sex Discrimination Act 1984 (Cth) s 4
3 “[T]he Yogyakarta Principles have no legal force either internationally or within Australia. They were developed by a group of human rights experts, rather than being an agreement between States” Responses to questions on notice provided by the Attorney-General’s Department on 21 May 2013 in The Senate Legal and Constitutional Affairs Legislation Committee pg. 26 used by persons of the sex they were assigned at birth if they identify as a different gender.”

This statement privileges the needs of the trans-identified student over the rest of the student body. This is particularly problematic in the situation of a male student identifying as female and then using the girl’s facilities. Girls are entitled to privacy, dignity and safety, particularly during puberty with the additional burden of managing menstruation (or pregnancy), without having to deal with a male-bodied person in this space.

There is ample evidence of girls being adversely affected at school via rebranding of female toilets as “gender neutral” or allowing biological males access to this space; there are reports of girls electing to self-exclude, being subjected to period-shaming, and refraining from eating and drinking (with a commensurate rise in UTIs).

In QLD there was a huge international public outcry when a new school in Brisbane was promoted as having “gender neutral” toilets, which forced Premier Palasczuk to step in and revert the policy to single sex provision4.

Sanctions for Objecting to Overriding of Boundaries

“If other students indicate discomfort with sharing single-sex facilities (toilets, change rooms, dormitories or overnight accommodation for example) with a student who identifies as transgender, this should be addressed through the school learning and support team.”

Our society takes great pains and invests significant time, energy and resources to educate our children about safeguarding from a very young age (particularly for girls), and we encourage them to speak up if they feel uncomfortable, intimidated or frightened, particularly by the presence of a male in a space where they are vulnerable. Yet the document completely dismisses this basic safeguarding tenet by telling children that if they raise concerns or assert their boundaries, the child who is rightfully expressing their fear or discomfort with an opposite sex child being in a confined and private space with them, will be the student who will be removed, reprimanded and re-educated to acquiesce to gender ideology because the trans- identifying student’s needs have been given priority. It also promulgates a false narrative that the male student is actually “female” and has every right to be in that


4 https://www.news.com.au/lifestyle/parenting/school-life/genderneutral-toilets-at-brisbane-high- school-cause-outrage/news-story/aedcfd3787f58b943eff624c3b4b4aa8

space, essentially we are asking to children to ignore the reality of their own senses and to accommodate a falsehood despite their own distress or discomfort.
It is particularly egregious and concerning to presume that a male student should be allowed to share sleeping quarters with female students – this is a significant safeguarding issue, and completely disregards the rights of girls to safety, privacy and dignity in spaces where they may be in a state of undress or asleep.

School Sport

The section completely misrepresents the protection for sex-segregated sport under Sex Discrimination Act (Cth) s42 where sports can be segregated by sex after the age of 12 years if “strength, physique and stamina” are relevant. These factors are relevant to all sports, particularly as most children have begun puberty by age 12, which is when the biological advantage of males over females is in arguably apparent.

“Most students will be able to continue to participate in competitive sport in their identified gender after they have turned 12”.

The implication is that there is presumption that the needs of the trans-identified student will again take precedence, without any due consideration for safety and fairness of the girls, and the trans-identified student’s need take priority without any application of the legislative exemptions that allow for a player to be excluded solely on the basis of sex in NSW, and upon consideration of the factors of “strength, physique and stamina” under Commonwealth legislation., the legislation is silent on either elite and community sports.

“It may be lawful to exclude students aged 12 and over from competing in certain sports at the elite level in certain circumstances”.

The legislation does not differentiate between elite or community or social sports, in fact the legislation is entirely silent on distinguishing the differing levels of sport. The safety, privacy, dignity and fairness for girls in sports, fought for by women over many decades of activism, to ensure equal participation in sport has been completely disregarded. Investment, resource allocation and media coverage of women’s sports remains woefully inequitable and has only been further adversely impacted by COVID-19.

A high-profile case is currently being heard in the US in relation to Title IX violations where the state of CT has allowed males to compete against females5, and the Department of Education has stated that any institution allowing biological males to compete in the female category is violating Title IX6.

Teaching Gender Identity in the Cirriculum

The document states that “gender identity may be discussed in many curriculum areas”, this is deeply concerning due to highly contentious nature of the topic, and it is arguing that NSW school children should be taught factually untrue and ideological concepts such as human beings can “change sex”, or “boys can be girls, or have periods” and some “girls have penises”. A recent example of this is the “genderbread” managing to find its way into NSW classrooms, despite gender identity being explicitly excluded from the formal curriculum7.

There is a case currently pending in Canada where a 6 year old girl was deeply distressed at being told girls aren’t real.8

The document goes on to state that “Teachers should treat the topic in a manner that is respectful, inclusive and positive”, however based on the current method of silencing or shaming critics of the ideology, it is strongly doubted that the opinion of any student criticising the dogma would be welcomed, and would in fact require reprimanding for failure to unquestioningly accept the ideology should they dare to critique, or even question. It is also asserted that “inclusion” in this instance, excludes girls, as by accepting this ideology they are being compelled to subsume their needs to those biological male students.

Undermining of Family Integrity and Parental Authority

The most alarming part of the document is found in Support for the extended family of the student and Reporting Requirements; if the parents of the trans-identified child do not “affirm” the child and refuse to provide “consent” to the school to facilitate the transition (“to help with decision making, planning, assessment or service provision”), the school is informed that they can rely on the Children and Young Persons (Care and Protection) Act 1998 to circumvent the parent’s rights and authority and they are encouraged to report the parents to Community Services for this “harm”.

5 https://www.adflegal.org/selina-soule-track-athlete-story
6 https://www.nationalreview.com/news/education-dept-concludes-that-connecticuts-inclusion-of- transgender-athletes-in-womens-sports-violates-title-ix/
7 https://www.skynews.com.au/details/_6157675480001 https://www.dailymail.co.uk/news/article-8333507/Controversial-transgender-education-tool- Genderbread-Person-pulled-NSW-school.html
8 https://www.jccf.ca/school-sued-for-telling-six-year-old-girl-that-girls-are-not-real/


There is a growing group of concerned parents9 who have suffered already due to this policy; ordinary, caring, diligent parents whose children have come to believe “transitioning” is a solution to their problems. Many children “diagnosed” with “gender dysphoria” have pre-existing mental health issues, are on the autism spectrum or are simply gender non-conforming and would likely grow up to be gay or Lesbian if they are left alone.

Managing Risk of Harm

The document states in its introduction: “Schools have a legal duty to protect students from foreseeable risk of harm and to do what is reasonably practicable to ensure their safety”.

However, it is clear from the guidelines that the concerns and rights of girls and non- trans identifying students have been completely disregarded and dismissed. The Guidelines explicitly say “The welfare and educational needs of the student are of primary importance and should be the focus of all actions taken by the school”, It is remarkable that the needs of the trans-identified student take priority over the needs of the rest of the entire student body, to their detriment, with girls’ needs failing to be given any consideration whatsoever.

A school’s exposure to liability may be increased if biologically male students are entitled to access spaces that have been set aside for female only use when the girls may be vulnerable, asleep or in a state of undress. Additionally, it appears no consideration has been given to the known and foreseeable increased risk of injury and concussion to girls playing sports should they have to compete against a biological male.

Conclusion

It begs the question, who were the advisers to the Department of Education in relation to this Bulletin? Why has there been an obvious failure to consider the needs of the overall student body against those of a single or very small group of students? Why were the needs of female students ignored? Why has this policy and regulatory capture occurred with no media scrutiny or public debate, except

9 https://www.facebook.com/pages/category/Community/Australian-Parents-Questioning-Gender- 109605477037918/

coverage unilaterally in favour of gender ideology? Why were students, particularly female students, and parents, not consulted?

Recently in the UK, school districts and the CPS implementing similar guidelines were threatened with judicial review and legal action, have now been withdrawn. It will only be a matter of time before similar legal action occurs here in NSW, should these issues not be addressed10.

Bulletin 55 is an egregious example of policy capture by transgender ideologists. It is deeply concerning that such guidelines are being implemented in our schools with little oversight or public scrutiny when it has such a significant material impact on the student body, particularly girls. This has gone far enough, our children deserve better.


10 https://www.dailymail.co.uk/news/article-8301769/Schoolgirl-13-wins-court-fight-forcing- Oxfordshire-council-scrap-transgender-toilets-toolkit.html https://safeschoolsallianceuk.net/2020/05/08/council-ditches-trans-guidance-on-lavatories-after- girls-victory-the-times/
https://safeschoolsallianceuk.net/2020/04/30/cps-guidance-withdrawn-for-review/

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