Trans child’s parents sue school for discrimination

Primary pupil barred from using boys’ toilets and wearing boys’ swimming costume

● The parents of a transgender boy are suing a primary school for R100,000 in the equality court, alleging discrimination after their child was barred from wearing a male swimsuit and using the boys’ toilets.

This was after Beaumont Primary School, in Somerset West, Western Cape, told the parents last year that the then eight-year-old pupil — referred to as “OM” in court papers — should wear a “unisex swimming costume” that “covers the top half of his body”.

The parents also want the constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act to be altered to include “gender identity and gender expression”, as well as an “unconditional apology” to the boy from the principal and school governing body (SGB).

They are seeking R100,000 as “compensation for the impairment of his dignity, as well as the emotional, physical and psychological pain and suffering”.

The child’s and the parent’s names have been redacted in the court papers filed in the equality court, sitting in the high court in Cape Town, to protect the child’s identity.

“OM is just a boy, who asked for nothing other than to live his life and express his identity as a boy,” the father’s affidavit reads. “His gender identity had no effect whatsoever on his peers or the teachers at the school. Yet, despite initially allowing him to express his gender identity fully in grade 1, [the SGB and the principal] for no good reason, sought to diminish OM’s gender identity and to ‘other’ him among his peers.”

The father said the school’s conduct had “led to the drastic decision to remove OM, not only from the school, but from the country”. In the court papers, the boy’s mother said the situation had forced them to remove the child from the school and relocate to Switzerland at the end of 2023.

“OM has generally performed well academically and enjoyed going to school. When the school’s attitude to affirming his gender identity changed, in the form of preventing him from using the boys’ swimming costume and threatening him with disciplinary action if he used the boys’ bathroom, his attitude towards going to school changed,” the mother’s affidavit reads.

“There have been many instances where he refused to go to school in the mornings.

This meant that he missed a lot of school days. I believe that if there were less distractions for him to worry about, he would be performing better at school.

“OM’s sleeping habits have changed over the last year. He increasingly requests to sleep in my bed because he says he is experiencing nightmares and is seeing zombies. This has meant that he started to have tantrums more frequently.”

The mother said the toilet ban had resulted in the boy’s reluctance to use the school toilets — resulting in a urinary tract infection from holding his urine in.

“OM told me that he does not go to the bathroom at the school because he did not want to use the unisex bathroom, which was a cubicle located within the girls’ bathroom. He told me that he wanted to use the boys’ bathroom like the other boys in the school do, and could not understand why he could not do so.”

She said the “ongoing discrimination” had not been resolved despite “numerous engagements” with the provincial education department, the South African Human Rights Commission and the Commission for Gender Equality. The mother said they then decided to move the boy to another school, but the private school in Somerset West which has a gender-inclusivity policy was too expensive for them.

She said the absence of a binding national and provincial gender-inclusivity policy that informs school-based policies compounded the situation. She said the family had decided that she would relocate with the boy to Switzerland to “be in an environment that allows him to express his gender identity free from harassment and intimidation”.

She said the school he would be attending there had committed to using his correct pronouns and allowing him to dress as a boy, participate in all boys’ sports and use the boys’ costume “without any need for negotiation nor debate”.

“I am a Swiss national, OM was born there and my family still resides there,” the affidavit reads. “I am also aware that the schools in Switzerland are more inclusive and accommodating of transgender learners. I have already been communicating with his new teacher and she is very excited to have him at the school and assist him with learning German and integrating into the school.”

Beaumont Primary School’s SGB, the principal, the provincial head of the education department, the director of inclusive education, the MEC and the national minister have been cited in the court application.

The parents also want the court to declare that the SGB’s and the principal’s refusal or failure to allow the child to use the boys’ toilets or wear the boys’ swimming costume constitutes unfair discrimination and that their conduct constitutes harassment.

They also argue that the head of the education department, the MEC and the director of inclusive education, as representatives of the state, failed to fulfil their obligations by failing to intervene when the matter was brought to their attention.

However, the head of the department, the MEC and the director of inclusive education argue in responding papers that the declaratory relief sought by the parents regarding the conduct of the SGB and the principal “will have no practical effect and is arguably moot” because the boy had left the school.

However, they conceded the apology will have “a practical effect for OM regardless of where he resides”.

“The damages claim remains alive,” the court papers read. “However, if the remaining issues are moot, it would be more appropriately brought as action proceedings due to the likely disputes of fact. This court will have to decide if it is willing to hear a damages claim by means of application, particularly in the circumstances where the other relief sought in the application is moot.”

The Commission for Gender Equality and Access Chapter 2 Law Clinic have applied to be admitted as friends of the court. The matter is pending.

The Sunday Times reported on the case last year. Western Cape education department spokesperson Bronagh Hammond told the Sunday Times at the time that governing bodies had wide-ranging powers under the South African Schools Act, including the authority to impose a dress code.

“The school’s governing body has taken steps to address the matter and we trust it will be resolved in the best interests of all at Beaumont Primary,” she said.

Ronald Addinall, a clinical social worker, sexologist and academic at the University of Cape Town, said forcing transgender boys to wear gender-neutral swimming outfits made them stand out and look different.