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

A hot topic in many schools, following increased understanding of gender identity, is whether pupils have a right to allow their preferred pronoun to be used at school.

In general terms, it’s best practice for a school to respect and accommodate a pupil’s gender identity by using their preferred name or pronoun where possible.

Changing name/gender identity can be a pivotal moment for many pupils. It can be an indicator that the pupil is taking steps towards presenting as the gender they wish to live in.

Schools owe a duty of care to their pupils. Mis-gendering a pupil can be uncomfortable or distressing for them, and schools should be alive to this.

To formally change name through deed poll without parental/guardian consent, a student must be 16 or over. To change a name given on their birth certificate, they must be 18. To change the sex recorded on their birth certificate, they’d need to apply for a Gender Recognition Certificate when 18.

If a student decides to change their name or pronouns, schools should consider:

i. Using a pupil’s preferred name or pronoun on school systems

Under the Pupil Registration Regulations 2006/1751, a school is required to record in its admissions register the “name in full” of every pupil.

When schools record data about pupils’ gender identities, though, the most recent guidance published by the Department for Education (DfE) states that schools should record:

“The gender of the pupil in the format of ‘M’ (male) or ‘F’ (female). Gender should be self-declared and recorded according to the wishes of the parent and / or pupil. Individuals are free to change the way their gender is recorded.”

Therefore the school can amend the gender of any pupil on their own management information systems at any time.

Also, if a pupil changes their legal name (e.g. by getting a deed poll), schools are required to use the pupil’s new name on the admissions register.

You can read the DfE guidance in full here.

ii. Using their preferred name or pronoun for exams 

The Joint Council for Qualifications issued guidance for centres running exams in 2020-2021.

Guidance from the Joint Council for Qualifications states that it’s “advisable” to enter candidates under names that can be verified against identification such as:

  • Birth certificate,
  • Driver’s license
  • Passport.

Ultimately, though, “The decision is the candidate’s/centre’s to make. The centre is best placed to understand the candidate’s circumstances and make an informed decision.

Once an exam result is accredited, it’ll need to be linked with a Unique Pupil Number (UPN) or Unique Learner Number (ULN) from the school census information submitted in January of the exam year.

UPNs and ULNs tend to be linked with legal names. This is usually the pupil’s name when they started education, which is often the name on their birth certificate, not their preferred names. But it’s possible for exam papers and/or certificates to be issued in a pupil’s preferred name, if they’d prefer.

You can read the guidance from the Joint Council for Qualifications in full here.

iii. Gillick Competence – who can consent?

If a pupil’s requested to be referred to by an alternative name or pronoun, the school should consider consent. The  test set out in Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7 states:

“…whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment [here: change of name/pronoun] proposed, so the consent, if given, can be properly and fairly described as true consent.”

Children aged 16 or over are generally regarded as ‘Gillick competent’. This means they’re able to give the necessary consent to a decision to change their name.

Children under 16 may be competent to consent to this. The closer to 16 a child is, the more likely it is that they’d be deemed competent. But as per the test above, the individual child’s maturity and understanding needs to be considered.

When considering a change for any pupil, it’s good practice to record:

1. Any discussion held with the child about their change of name or pronoun decision, including any information about the child’s reasons for wanting to change their name

2. Any assessment or action taken to determine competence3. Any risks that’d be posed to the child’s safety and any safeguarding concerns, including in the event the school don’t adopt the new preferred name or pronoun (e.g. any concern the child may harm themselves if they’re not referred to by their preferred name) or where an attempt has been made to follow this process and the child’s request has been rejected.

Where risks are identified, the school should act in accordance with its safeguarding policy.

Applying Gillick

The school can rely on a pupil’s decision to change their personal data as valid consent, if they have mental capacity to give valid consent.

Their decision should be respected and accommodated by the school. Contradictory views from parents can’t override that decision.

If the pupil doesn’t want their parents to know about a name change, the school should document the request and the reasoning. They should then make reasonable adjustments to safeguard the child.

If a pupil is NOT deemed to have capacity to make this decision, it falls to an appropriate person to decide on their behalf. The appropriate person/s who’ll be required to give consent is/are likely to be the persons with parental responsibility on behalf of the child.