Measures for transgender students were approved five years ago but are no longer in effect

The first rules for schools on self-determination of gender identity were approved five years ago, but after a Constitutional Court ruling in 2021, transgender young people continue to depend on the sensitivity of teachers.

When the Government decree was published on 16 August 2019, setting out the measures that schools will henceforth have to take in the context of self-determination of gender identity, the topic seemed to be closed.

At that time, schools had already been living in a kind of legal vacuum for about a year after the adoption in 2018 of a law establishing the right to self-determination of gender identity and the protection of sexual characteristics of each person, which stipulated that the state guaranteed the adoption of measures in the education system.

The problem, as the Constitutional Court later stated, is that the determination of these measures was not the prerogative of the government, but of the Assembly of the Republic, and thus in 2021 this void reopened, and transgender children and young people once again became dependent on the sensitivity of schools and teachers.

At that time, the principals’ representatives assured that little would change with the “tip” from the Constitutional Court, since the planned measures had already become part of the reality of many schools.

In fact, this has been the case in some schools, and there are cases where schools have even introduced gender-neutral locker rooms and bathrooms with transgender students in mind, but there are also stories of students not being allowed to use the bathroom or teachers refusing to change their name.

Attempts to regulate gender identity in schools, now in the hands of the Assembly of the Republic, have had their successes and failures.

In December 2021, just over five months after the Constitutional Court’s decision, the dissolution of Parliament due to the failure to implement the 2022 state budget left legislative initiatives from PS, BE and PAN on their way.

It took the Assembly of the Republic more than a year to approve, in April 2023, new bills from the same three parties to protect the rights of transgender and homosexual people, including measures in the school context.

In less than eight months, the parliamentary committee on constitutional affairs, rights, freedoms and guarantees approved the replacement text of the three initiatives, and the diploma was finally approved on 15 December, with votes in favour from PS, BE, PAN and Livre, the opposition from SDP, Čegi and IL and abstention from the PCP.

According to the document, schools should identify “channels of communication and identification” of cases and assess the situation with parents to “ensure support and monitoring, and identify organisational needs and possible forms of action to ensure the well-being and healthy development of the child or young person.”

They will also have to ensure transgender students have access to “bathrooms and locker rooms, ensuring everyone’s well-being and making any adjustments they deem necessary.”

The relief felt by families of transgender children and young people contrasted with strong opposition among conservative movements, which saw the diploma as “fundamentally ideological.”

Critical voices were also heard among associations representing parents and school principals, who considered the measures a disproportionate demand on schools, particularly with regard to the adaptation of existing bathrooms and changing rooms.

However, for the decree to enter into force, one final step was missing – the green light from the President of the Republic – but on January 29, 2024, two weeks after the second dissolution of Parliament, Marcelo Rebelo de Sousa vetoed the Assembly decree.

According to the head of state, the diploma “simply lacks the role of parents, guardians, legal representatives and the associations they create.”

Now, with a completely different configuration, following the legislative elections of March 10, 2024, which gave a right-wing majority, the Assembly of the Republic is left in the hands of the regulation of self-determination of gender identity in schools.