Transgender Beaumont Primary Learner Faces Unsafe and Discriminatory Learning Environment 

CAPE TOWN: 20 October 2023

The Legal Resources Centre (LRC) is appearing in the Western Cape High Court on Friday, 20 October 2023, representing a transgender learner, OM, and his family. The LRC is challenging the learner’s right to receive an education in a safe environment free from unfair discrimination and harassment.

OM is being denied and obstructed from expressing his gender identity, which includes the right to use the boys bathroom and wear the boys swimming costume. Beaumont Primary are forcing him to use a “unisex” bathroom and a “unisex” swimming costume that no other cisgender learner is being forced to wear. This directly infringes upon his rights to equality and basic human dignity.

Due to the hostile environment created at the school, OM is not able to learn in a space that is conducive, safe, and comfortable for him, affecting his right to education. It is important that schools accommodate transgender persons and create a learning environment that allows them to affirm their gender identity.

In this case, the following Constitutional rights are infringed upon; the Right to Equality (Section 9), the Right to Dignity (Section 10), and the Right to Education (Section 29). In addition, Section 9(3) of the Constitution prohibits direct or indirect discrimination, including on the grounds of gender. Section 9(5) further states that such discrimination is unfair unless proven otherwise. The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) lists gender as a prohibited ground and prohibits unfair discrimination by the state and individuals, specifically addressing gender-based discrimination.

OM’s experience is also a result of the failure of the Western Cape Education Department (WCED) and the National Department of Basic Education (DBE) to publish binding regulations or policies which ensure that the gender identity of all learners is affirmed in schools. Both departments have drafted policies, but the delay in their publication leaves transgender learners in the Western Cape, and nationally, vulnerable to transphobic principals and school governing bodies.

Our clients seek redress under PEPUDA and the Constitution.

Furthermore, we seek an order that Beaumont Primary adopts a Gender Inclusive Policy to accommodate transgender learners. Other schools should follow suit to ensure that the same type of discrimination and transphobia is not experienced anywhere.

ENDS.

For media enquiries, contact the Legal Resources Centre Communications Team on +2779 990 2494.