Support for transgender pupils

Proposed measures for what schools and teachers should do to support transgender pupils and those questioning their gender identity has sparked debate among education leaders and children’s rights organisations.

Draft non-statutory guidance, published by the Department for Education in December, aims to help school leaders make lawful decisions and set parents’ expectations.

Five principles

The draft guidance has five general principles, including that parents should be consulted as a matter of priority if their child expresses a desire to socially transition and that there is no general duty to allow a child to do so in school. Social transitioning relates to a pupil requesting to change their pronouns, name and school uniform.

Robin White, who is described as the “go to” lawyer for gender reassignment discrimination by Chambers and Partners, says the assertion in the draft guidance that there is no general duty to allow a child to socially transition goes against the Equality Act 2010.

She says: “Refusing to accommodate a child who identifies as trans is a breach of the Equality Act. It’s the government’s opening position in this guidance and it’s wrong.”

That view is shared by charity Mermaids. It said in a statement: “It is difficult to understand how aspects of this draft guidance, including automatically excluding trans pupils from facilities, sport bans or allowing students to be misgendered are compatible with existing equalities law.”

However, charity Sex Matters and other experts challenge this analysis (see expert view below).

The draft guidance outlines that it expects there will be very few occasions in which a school or college will agree to a young person changing their pronouns. It also stipulates that all children should use the facilities designated for their biological sex unless it will cause the child distress, in which case schools should seek alternative arrangements while ensuring that single-sex spaces are maintained.

White says that people who want the additional segregation from trans children should be offered a private toilet to use. “That is a much less discriminatory approach than to say to the trans person, ‘you have to identify yourself by marching down the corridor and using separate facilities’,” she adds.

School leaders and teachers’ unions say the proposals fail to add clarity. Paul Whiteman, general secretary of school leaders’ union NAHT, said the guidance “leaves a lot of questions unanswered, meaning school leaders will continue to be placed in an incredibly difficult position”.

Gillian Keegan, the Education Secretary, said: “This guidance puts the best interests of all children first, removing any confusion about the protections that must be in place for biological sex and single-sex spaces, and making clear that safety and safeguarding for all children must always be schools’ primary concern.”

• The consultation closes on 12 March. From http://tinyurl.com/54tcmr4h

Expert view: New trans guidance 'a step forward for schools'

Sarah McKimm is a specialist education and safeguarding lawyer

The draft DfE guidance for schools on gender-questioning children represents a major step forward for schools looking for clarity. However, with threats of litigation being bandied on social media, some are questioning whether the draft is sufficiently clear or could expose those who apply it to the risk of litigation and disciplinary action.

The headache for the drafters of the proposed guidance is, first, that these children are not a homogenous group and may experience several underlying issues. Second, in addition to equality law, there is a complex matrix of legislation and statutory guidance to keep all children safe in school. This is not always fully understood by lawyers with a background predominantly in employment law.

The draft advice that there is “no general duty to allow a child to social transition” has been questioned, for “going against the Equality Act” under which “gender reassignment” is a protected characteristic and for failing to recognise that children have rights to privacy and for their views to be taken into account. These challenges rely on case law about adults – they elide protection from discrimination with “social transition” which is not mentioned in the Equality Act.

Protection from discrimination at school is about ensuring that all children can access education whatever protected characteristics they have. It does not assume that giving children whatever they want in terms of social transition at school will necessarily be in their best interests. These are matters for careful assessment in co-operation with other agencies and parents in line with guidance such as Working Together to Safeguard Children, hence the guidance is correct that there is “no general duty” to allow a child to social transition.

Challenges of childhood

Objections reported about the guidance around toilets and changing rooms likewise fail to recognise the challenges of childhood. Adolescence can be a time of excruciating embarrassment for girls learning to manage menstruation and the pain and discomfort that often goes with it. In addition, sexual harassment and assault between children is endemic. It is legitimate and proportionate for the government to take such matters and others into account when formulating guidance to protect everyone. This clarity is to be welcomed.

Until there is a body of case law from the higher courts to help us apply the law in schools as part of a coherent framework, some of the uncertainties can be resolved only superficially by the government of the day “taking a position” on the basis of best advice.

No position is risk free. Schools fear the litigation threatened if they follow the guidance but the risk is at least as great if they do not. The draft guidance may not be perfect but can be seen as a step forward.