New trans guidance for schools is ‘unlawful’, barrister says

Robin White, who specialises in discrimination and employment law, was the first barrister to transition from male to female while practicing at the employment and discrimination bar in 2011.

She is described as the “go to” lawyer for gender reassignment discrimination by Chambers and Partners.

The guidance, published yesterday (19 December) by the Department for Education, outlines “that there is no general duty to allow a child to socially transition”.

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White explained that this goes against the Equality Act 2010, saying: “Gender reassignment is protected under the Equality Act. As long as somebody has a settled intention to transition, either medically or socially, they have the protected characteristic of gender reassignment.

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

The DfE advice also states that “members of staff should not unilaterally adopt any changes, including a new name or new pronouns, unless or until this has been agreed by the school or college".

White added that this goes against the European Convention on Human Rights (ECHR) and the UN Convention on the Rights of the Child (UNCRC), saying: “Every child has the right to a personal private life under these conventions.

“These rights require that the views and position of the child be taken into account and if a child is saying very clearly that they identify as a different gender from their birth sex then not accommodating that, or making that very difficult, is unlawful.”

A government spokesperson said: “The guidance is lawful and will help schools navigate these complex and sensitive issues, by urging caution, parental involvement, and prioritising safeguarding at all times.”

However, according to leaked legal advice obtained by Schools Week, DfE lawyers have also questioned the legality of the guidance, suggesting that schools risk legal challenges if they follow several elements of the advice.

School leaders and teachers’ unions have expressed concern about the guidance.

Paul Whiteman, general secretary of the school leader’s union NAHT, said: “Upon an initial look, it would appear this guidance leaves a lot of questions unanswered, meaning school leaders will continue to be placed in an incredibly difficult position.”

White said she will be publish a full critique and re-write of the guidance in the new year.

She said that schools need practical advice about what to do when a child says they are uncomfortable with the gender of their birth sex and the kind of conversations the school should have with that child.

Contrary to the government guidance which states that trans children who feel uncomfortable using the toilets of their birth sex should be provided with separate facilities, White added that people who want the additional segregation from trans children should be offered a private toilet to use.

She said: “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 use separate facilities’.

“We need guidance which is born of love, inclusion and support, not exclusion, hatred and nastiness.”

She added that the guidance is part of “election engineering” by the government, saying “as this is a consultation, it will never be in place before the next election.

“The government has turned one of the most vulnerable groups of children in a political football. It is disgusting.”

DfE has been contacted for further comment.

The consultation closes on 12 March.