Gender-neutral bathrooms at schools — draft guidelines spark ‘robust’ debate

(Photo: Gallo Images / Sowetan / Thulani Mbele)

By Bheki C. Simelane

16 Nov 2022

Less than an hour after Daily Maverick requested clarity over an uproar over contentious draft guidelines on unisex toilets at schools, the department of basic education sought to set the record straight.

Referring to the issue of gender-neutral bathrooms at schools, the department of basic education said on Wednesday morning that the media had blown the matter out of proportion.

Department spokesperson Elijah Mhlanga said in a statement that media reports were based on a draft discussion document which evolved from consultations. This occurred before the draft guidelines were subjected to public comment.

“The narrow focus on ‘unisex toilets’ is unfortunate as it misses the bigger debate on the elimination of gender discrimination in all spheres of society, and specifically creating a socially conducive and welcoming environment in schools.

The department said the leaked document that was referred to in media reports “asks pertinent questions about inclusion of sexually and gender diverse children pertaining to school admission, curriculum, co-curricular programmes, uniforms and facilities”, said Mhlanga.

The draft guidelines have divided some South Africans and been the subject of much debate. The consensus is that the issue is complex and must be handled with caution.

Some welcome draft guidelines

However, news of the draft guidelines was welcomed in some quarters.

“The introduction of guidelines that protect our transgender children is a cause for celebration,” said Dr Bernadette Johnson, director of Transformation and Employment Equity at Wits University.

“This is important as transphobic legislation continues to spread in the USA afresh. We need decisive leadership that is not afraid to take new steps towards a transformation imperative. In doing so, we assert that we value, care and wish to protect another generation of transgender youth.

“Places of education are in permanent phases of transition and transformation will never happen if we aren’t prepared to encounter some uncomfortable and disruptive ideas,” Johnson said.

gender-neutral schools (Photo: Gallo Images / Beeld / Mary-Ann Palmer)

“The unisex bathrooms are a response to the representation of gender-diverse learners in schools and as such would be welcomed,” said Dr Glodean Thani of the Wits University School of Education and a gender equality specialist.

“This is in response to the promise of inclusivity for LGBTQI+ individuals in our society, as promised by the South African Constitution.”

Thani also worked in the Department of Basic Education in the gender unit and was part of the national task team on LGBTQI issues on behalf of the department.

School governing bodies

“We believe the matter should be dealt with by engaging parents through school governing bodies,” said South African Democratic Teachers Union (Sadtu) spokesperson, Nomusa Cembi.

The mother of a Soweto primary school pupil said if the draft guidelines were implemented, it would make children feel less comfortable.

“Gender-fluid and non-binary groups of pupils are being catered for at the expense of far too many other pupils, and the department is failing to make this key consideration,” said the mother, speaking anonymously.

The draft guidelines are part of ongoing consultations for the Socio-educational Inclusion of Diverse Sexual Orientation, Gender Identity, Expression and Sex Characteristics in Schools.

Human rights violations

The department said the draft guidelines were prompted by the violation of human rights and discrimination perpetrated against children of diverse sexual and gender identities, whether intentional or not.

The department said it was also motivated by related litigation which provincial education departments have had to deal with, as well as issues faced by school governing bodies on these matters.

Thani said the Constitution does not provide guidelines on how certain rights such as non-discrimination based on gender and sexual orientation are enacted.

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“The onus is on each government department to consult with various stakeholders such as civil society organisations and donor agencies to derive the correct course of action to take when implementing these pronouncements relevant to each function of said department.”

He said it was key that consultations initiated by the national task team on LGBTQI+ matters affecting all members of that community are heard, and that government departments and the various stakeholders respond by developing relevant remedial programmes.

Gender-based violence

Thani said harassment in toilets of LGBTQI+ learners was raised as a matter of concern, and the department’s response was a way of ensuring LGBTQI+ learners were safe from homophobic bullying at school.

But some ask if there is a place for gender-neutral bathrooms in South Africa — a country with a high rate of gender-based violence (GBV) which President Cyril Ramaphosa has described as another pandemic.

gender-neutral school (Photo: Gallo Images / Sowetan / Thulani Mbele)

“The unisex toilets proposed draft guidelines and GBV concern may, to a degree, be conflating issues. The issue of GBV is one our country has been struggling with for some time now and is of great concern to all, as pointed to by The Optimus Study (2018),” said Thani.

“It would be remiss if we thought that gender-specific… or gender-neutral bathrooms could stop perpetrators of GBV. Perpetrators… prey upon their victims wherever possible, in class or at home,” said Johnson.

Sadtu’s Cembi said: “... the majority of gender-based violence takes place in the home. So far, I have not seen evidence pointing to the fact that the majority of sexual violence takes place in school toilets.”

Sexual misconduct

In a written response to the Democratic Alliance, Gauteng Education MEC Matome Chiloane said there were 173 allegations of sexual misconduct cases against teachers, at the cost of more than R10-million in precautionary suspensions.

A total of 87 teachers were found guilty of misconduct and dismissed, while 86 teachers accused of sexual misconduct were still teaching.

Cembi said these statistics were very worrying.

“Let the law take its course… teachers play an in loco parentis role and it cannot be allowed that a person who plays that role sexually abuses learners.”

On the fact that 173 teachers were facing sexual misconduct cases (in Gauteng alone), Thani said the department of basic education should revisit and enforce the 2015 safety protocol agreements with the SA Police Service to make schools safer spaces overall.

Thani said the national sexual offenders roll would need to be fully enforced to ensure learners were not exposed to educators previously prosecuted for sexual violence in other provinces.

“The fact that at least 173 educators have been implicated in sexual violence charges against children in Gauteng schools alone, points to a challenge in the constitutional and human rights training of educators, which needs to be reinforced,” he said.

“If we gatekeep gender-neutral education from transgender learners, we are not only failing them by not accommodating them, but we are forcing a part of our community to stay in closets from which they will reflect on their days in school as a nightmare,” said Johnson. DM

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Some welcome draft guidelines

School governing bodies

Human rights violations

Gender-based violence

Sexual misconduct