Tackling homophobia: Meeting your legal duties

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As yet more research shows the extent of homophobic bullying suffered by students, legal expert Paul Maddock looks at schools’ legal duties and how they can tackle the issue

A recent survey conducted by the National AIDS Trust suggests that gay pupils across the UK are being subjected to homophobic bullying, often at the hands of their teachers or other pupils. 

The survey questioned more than 1,000 gay or bisexual males aged between 14 and 19 and found that 55 per cent reported being a victim of bullying and discrimination due to their sexual orientation.

Of this figure, 99 per cent said they had been targeted by another pupil and 39 per cent by a teacher or another adult at their school (Boys Who Like Boys, 2015).

The research comes on the back of a range of other studies that have revealed how teachers and pupils suffer homophobic bullying.

Gay rights charity Stonewall, for example, has found that homophobic language – phrases like “that’s so gay” and “you’re so gay” – is endemic, with nine in 10 secondary teachers saying they hear it in school, and 99 per cent of lesbian, gay, bisexual and transgender (LGBT) young people surveyed by the University of Cambridge (The School Report, 2012) saying the same.

Other research, this time by the NASUWT, has found that 12 per cent of LGBT teachers have experienced verbal abuse by students or by fellow staff, and less than half of those surveyed felt their school took homophobic bullying seriously.

Schools obviously have a duty to their staff, pupils and to society generally. A school must always act in a way which is fair and non-discriminatory.

The Equality Act 2010 gives staff and students protection from discrimination on grounds of specified protected characteristics, including sex, sexual orientation and gender reassignment. 

State schools also need to remember that they have a public sector duty to try and eliminate conduct prohibited by the Equality Act 2010, and to promote proactively equality of opportunity and foster good relations between those who do and those who do not share a particular protected characteristic. 

All teachers will know how important the education system is in shaping the views of young people. It is therefore crucial that schools create and promote an inclusive, equal and diverse environment and encourage pupils and staff to be non-judgemental and open-minded, both inside and outside of the school gates.

The key for any school is to seek to foster a respectful and inclusive environment where there is equality of opportunity for all pupils and staff. 

IDAHO (International Day Against Homophobia and Transphobia) took place on Sunday (May 17), marking the day in 1990 when the World Health Organisation removed homosexuality from its list of mental disorders.

It has been observed since 2005 and is a worldwide celebration of sexual and gender diversity, now marked in more than 130 countries. Last year, more than 1,600 events took place uniting millions of people in support of the recognition of human rights for all, irrespective of sexual orientation or gender identity or expression.

Celebrating IDAHO in school would be a great opportunity to promote a more inclusive environment for staff and pupils alike. 

But what other positive steps can schools take? 

Policies

Ensure that all policies are up-to-date and cover unlawful discrimination, harassment, and bullying of teachers and pupils (in particular bullying on the grounds of sexual orientation).

Publicise

These policies should be publicised appropriately (both internally and externally) so that it is clear to staff, pupils, parents or carers and governors what the school’s position is on homophobic bullying.

Promote and train

Staff should be trained according to the school’s policies and these policies should be proactively promoted. Teachers should carefully follow their school’s policies and encourage them to be applied consistently and reviewed if they do not address situations which arise commonly. Schools should endeavour to organise training for staff and could arrange talks for students, either from staff members or external agencies to further raise awareness. 

Consider

Think about how the school can foster a more inclusive environment through introducing LGBT networks or having dedicated focus groups for pupils and staff.

Deal with any incidents

If there is an incident of homophobic bullying, ensure that this is dealt with promptly and in line with the school’s policies and procedures. 

For example, schools should make sure allegations of bullying are investigated promptly by management staff who are ideally independent to any subsequent disciplinary decision taken against the pupils or teachers involved.

Interventions employed against those doing the bullying should be consistent and gender-neutral phrases should be used in letters to minimise the risk of offending. 

Don’t forget that schools still have a duty to investigate incidents of bullying that take place “outside the school gates” – this is particularly relevant to incidents of bullying on social media.

Report

Consider reporting episodes of serious bullying (in particular any involving injury) to the school’s insurers so that, if a claim is later made, the insurers are on notice and have an early opportunity to investigate.

Take advice

If an incident of homophobic bullying is sufficiently serious to consider the exclusion of a pupil or the termination of an employee, take legal advice. 

Conclusion

Finally, there is plenty of assistance available from external agencies – it is not an admission of failure for a school to reach out to the local authority or to charities for advice and assistance for itself or on behalf of staff or pupils. 

OutTeacher.org is one such agency – they have a website that provides case studies, information and links to support sites for LGBT teachers. 

Stonewall also offers a “Train the Trainer” course, which coaches on tools, techniques and confidence to enable participants to train other staff in school on how to tackle homophobic bullying. 

Stonewall has an Education for All campaign against homophobic bullying too (see their website for further information).

Paul Maddock is a solicitor at law firm DWF.

Further information

Photo: iStock


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