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Department for Education issue guidance on ‘gender-questioning’ children

The Government has released its long-awaited guidance for schools on how to deal with transgender issues in schools. The guidance is in draft format and subject to a 12-week consultation, towards which parents, teachers and school leaders are encouraged to contribute.

The delay in releasing the draft guidance reflects the legal complexities and various delicate balances which need to be struck – particularly in relation to the Equality Act 2010 and school’s legal obligations such as in relation to safeguarding and provision of single-sex spaces. The terminology in the guidance has been carefully chosen. It focuses upon “gender-questioning” pupils, including those who are “requesting social transition” (such as a change in pronouns, names and/or uniform).

The guidance is positioned as being “robust” in helping teachers and schools understand how best to deal with requests and support pupils. It refers to the increase in the number of children questioning their gender as a “complex phenomenon” and, for many, the guidance will read as encouraging schools to largely ‘push back’ on many requests from gender-questioning pupils (or their parents) which they may currently believe that they should or must agree to.

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The key advice to schools in the guidance is:

  • Social transitioning has significant psychological effects on children and should only be supported in “exceptional cases“. Schools are not obliged to accept requests for social transitioning, and should take a “very cautious” approach in this respect.
  • Schools should take a ‘parent-first’ approach. Parents should be centrally involved and should be consulted with before schools make any decision to agree to a social transition request or any other significant decision such as agreeing to use a new name for the pupil. Schools should consider whether there is any “social influence” involved in the pupil’s social transition request.
  • Neither school staff nor other pupils should be forced to use a pupil’s preferred or chosen pronouns which do not match their biological sex, and no punishment or sanction should follow for refusing to do so. Individuals can instead use the child’s preferred name. Primary school children should not be referred to by pronouns which do not match their biological sex.
  • Schools must continue to abide by their legal obligations to provide single-sex toilets (for pupils 8 and over) and changing and shower facilities (for pupils 11 and over) based on pupils’ biological sex. Pupils cannot be allowed to use such facilities which are for the opposite biological sex irrespective of their gender identity. Schools should explore whether to provide separate facilities for that child.
  • Uniform policies should generally be applied in the same way for gender-questioning pupils. However, the guidance acknowledges that schools may find it appropriate to apply some flexibility here – except in the case of swimwear.
  • Single-sex schools can refuse to admit pupils of the opposite biological sex irrespective of their gender identity. Conversely, they cannot refuse to admit a child of the relevant biological sex simply because they are gender-questioning.
  • Sports in schools must be segregated on the basis of biological sex where there is a safety consideration, and should “almost always” be segregated on the basis of biological sex to ensure competitive fairness in any event.

If you have any questions on the matters discussed in this article, please do get in touch with Tom Shears or another member of our expert team of Education Lawyers.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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