The Obligation to Allow Transgender Learners to Wear the School Uniform Corresponding to their Gender Identity in Accordance with the Right to Education and Non-discrimination in Terms of the South African Constitution and the African Children’s Charter

Abstract

The issue of unfair discrimination against transgender and homosexual learners in South Africa is increasingly being publicised. However, the African regional human rights and South African legislative framework allowing transgender learners to wear the school uniform which corresponds with their gender identity has not been adequately considered. Article 11 of the African Charter on the Rights and Welfare of the Child (African Children’s Charter) guarantees a comprehensive right to education for every child. It further provides every child with the right to non-discrimination in respect of the rights enshrined therein (Article 3). Similarly, the Constitution of the Republic of South Africa, 1996 (Constitution) also guarantees these rights to children in Sections 29(1)(a) and 9, respectively, with national legislation giving effect thereto. The right to education, read with the right to non-discrimination under the African Children’s Charter requires the state to take legislative and other measures to protect and promote the right to education of all learners, including transgender learners. The goal of prescribed school uniforms is to create a sense of equality among learners in the school environment. However, imposing an enforced dress code based on a learner’s sex and associated gender, exposes transgender learners to the risk of discrimination and marginalisation, which could prevent them from enjoying the full benefits that the right to education provides. The argument presented in this article is that not providing for or allowing transgender learners to wear the school uniform corresponding to their gender identity, infringes on their right to education under the African Children’s Charter and the South African Constitution. It is argued that it does so by unjustifiably discriminating against transgender learners by differentiating between them and cisgender learners. The article considers international best practices related to giving effect to the right to education of transgender learners to the extent that it relates to school uniforms.