Posted by Updated / Wednesday, 4 Feb 2026 20:58
The Irish Council for Civil Liberties (ICCL) has issued a statement clarifying that a guide it released in December does not present the use of a trans young person’s preferred name and pronouns as a legally binding obligation for schools.
The statement, released on Friday, follows commentary over the wording of a section in its 148-page ‘Know Your Rights’ guide published in collaboration with Transgender Equality Network Ireland (TENI) and ShoutOut, with funding from the Irish Human Rights and Equality Commission (IHREC).
The guide states: “According to Department of Education guidelines, your school must make every effort to update your name and pronoun in relevant systems and documents. It must also use your correct name and pronoun in day-to-day interactions.”
The wording, particularly the repeated use of the word “must”, was interpreted by some as asserting there is a legal obligation on schools.
In a statement on Friday, the ICCL said “contrary to some recent media reports and commentary… using a young person’s preferred names and pronouns is not presented in ICCL’s ‘Know Your Rights: A Guide for Trans and Non-Binary People’ as being a legal obligation for schools.”
It follows commentary in recent weeks centred on the specifics of the ICCL guide, and its reference to Department of Education guidelines.
The Department of Education told The Irish Times on 22 January that “no guidelines have been issued” in this area and that there was no obligation on schools to use students’ preferred pronouns.
The ICCL said Friday that its guide is “is our summarised assessment of the relevant content of the ‘Being LGBT in School’ resource from the Department of Education”.
It also said the guide was “subject to legal review” and identifies “some pieces of legislation which can create legal duties for schools, namely the General Data Protection Regulation (GDPR) and the Equal Status Acts 2000-2018”.
The department’s position
RTÉ sought clarity on the guidance in this area from the Department of Education. It said that responsibility for governance and day-to-day management rests with Boards of Management and principals.
It pointed to the Bí Cineálta anti-bullying procedures, implemented at the beginning of the 2025/2026 school year, which require schools to create “safe and inclusive environments” and explicitly addresses “gender identity bullying”.
It said these procedures “support schools to develop clear strategies to prevent and address these bullying behaviours as appropriate”.
It also referred to a resource called ‘Being LGBT in School’ from 2016, quoting the following line from it: “There is nothing to preclude a school from using a student’s preferred name in day-to-day interactions, regardless of the name used officially on the school register.”
The department confirmed that the 2016 resource is currently under review, with “appropriate next steps” to be considered once that review is complete.
What the 2016 resource says
While the department has highlighted where the guide says there’s “nothing to preclude a school” using preferred pronouns, a fuller reading of ‘Being LGBT in School’ shows that there is further guidance related to pronouns.
It states: “In general, it is extremely important to ensure that the correct gender, name and pronoun are used to address transgender or intersex people. Using the correct name, pronoun and gender is a mark of respect against which individuals will measure the level of safety and inclusion for them within the school.”
It adds that while mistakes may occur, schools should be “alert to the use of the original name and pronoun as a means of name-calling and harassment”.
The document also says it is not acceptable to “intentionally use a name or pronoun to identify a transgender student in the gender assigned at birth as a means of intending to hurt that person”.
At the same time, the guidance explicitly frames its recommendations as non-binding, stating that its suggestions “are based on good practice and offer some guidance in this area”.
It also notes that an Oireachtas committee recommended the development of comprehensive guidelines as far back as 2013. These have yet to be produced.
Other relevant legislation
Legal experts who spoke to RTÉ said that while the original wording in the ICCL guide may have overstated the legal position, there is relevant legislation that schools should consider when dealing with these issues.
Assistant Professor Judy Walsh is an equality law academic at UCD, director of the Equality Studies Research Centre, and the national expert on non-discrimination law for the European Equality Law Network. She was also co-chair of the ICCL between 2003-2007.
“There’s no law that states, in a proactive manner, schools must ensure that all children are referred to by their correct pronouns or names,” she said.
However, Asst Prof Walsh said the Equal Status Acts, which prohibit discrimination and harassment on the ground of gender, are the key legal framework schools should operate within on this issue.
How those laws apply depends on the context, she says. Her analysis of existing case law suggests that while “it’s unlikely that mistakenly misgendering somebody on a couple of occasions would constitute harassment or discrimination”, the position would change where that conduct persists.
“If somebody was alerted that this was a problem and persisted in doing it, then you would definitely enter the zone of harassment,” she said.
She said that where a teacher “consistently refers to a child by their incorrect name or their incorrect pronouns”, that behaviour is “highly likely” to constitute harassment under the Equal Status Acts, or potentially direct discrimination.
Barry Crushell, an employment law specialist and Principal Solicitor at Crushell & Co, draws a similar distinction.
“The failure to use somebody’s preferred pronoun isn’t, of itself, actionable,” he said. “It’s the consistent and deliberate misclassification of somebody who identifies as a different gender which is more likely to be problematic, as it would be considered by the WRC, the Labour Court, and potentially the civil courts as constituting a form of bullying and harassment.”
The WRC is the body responsible for deciding on discrimination claims in Ireland under the Equal Status Acts.
“There is a lacuna in the law here,” he added. “In the absence of very specific guidance on the use of pronouns, these issues are being left to interpretation by the Workplace Relations Commission and the Labour Court.”
Schools are also operating in a particular “grey area”, according to Mr Crushell, when dealing with students under 16. Under the Gender Recognition Act, individuals under 16 cannot obtain a Gender Recognition Certificate, while 16- and 17-year-olds must apply through a court process.
“From a legislative perspective, you could argue there is no legal requirement for a teacher to use a student’s preferred pronouns where the student has not transitioned under the Gender Recognition Act,” he said.
However, in the absence of specific legislation and guidance, Mr Crushell said that “the absence of a legal gender transition does not bar a claim under the Equal Status Act, as the relevant case law does not require legal certification as a precondition to recognition of a person’s gender or the use of their preferred pronouns.”
Again, he said, the key issue here is if “harassment or bullying is taking place”.
Where do things stand now?
The ICCL says its guide reflects how existing law should be understood and applied.
The Department of Education says it has issued no binding guidance and continues to rely on non-mandatory resources and anti-bullying frameworks.
Legal experts say liability arises only when conduct crosses into harassment or discrimination.
Ms Walsh says all that leaves schools in a difficult position.
“At present, schools, I don’t think, have adequate advice as to what they ought to do in that type of situation,” she said.
“Overarching responsibility here would lie with the Department of Education… to update the guidance that was produced on being LGBT in schools.”
As things stand, schools are being asked to navigate a sensitive and evolving issue using non-binding guidance.
Who Watches the Watchers? 