“Gender Questioning Children”: initial observations on the Government’s draft non-statutory guidance for schools and colleges in England

Insight

09.02.2024

Just before Christmas the Government published its long awaited non-statutory guidance on transgender children (the guidance uses the language of “gender questioning children”) in schools with the stated aim of providing clarity for schools and colleges, and reassurance for parents. Perhaps inevitably, the hoped-for clarity is limited, and the draft guidance throws up questions it doesn’t answer. Leaked versions of the draft guidance revealed that the Government’s own lawyers warned of a “high risk of successful challenge to guidance or schools” in relation to a passage stating that “as a default, all children should use the toilets, showers and changing facilities designated for their biological sex unless it will cause distress for them to do so”. This is because the Equality Act 2010 and safeguarding legislation “does not require a threshold of distress”.

It is important to note that the draft guidance is non-statutory which means schools and colleges do not have a legal duty to follow it. They do however have a legal duty to comply with the Equality Act which, by way of reminder, makes it unlawful for schools to discriminate against transgender pupils and prospective pupils in relation to admissions arrangements and offers. This means the way they provide education; the way they afford access to benefits, facilities and services; by not providing an education or access to benefits etc; by excluding, and by subjecting a pupil to any other detriment.

The draft guidance is written from the perspective that “social transition is not a neutral act; that some requests for a type of social transition … will not be compatible with a schools [sic] legal duties”, and that social transitioning “could have significant psychological effects on a young person”. It therefore treats any request from a child for some form of social transition as one that might potentially harm the child concerned, and / or their peers, and advocates that caution, with watchful waiting and parental engagement, should be applied.

The draft guidance states that in determining the response to any request for social transition by a child, schools must take into account a number of points. These include the view of parents, whether the child has been influenced by peers or social media, whether the child might feel pressured to identify differently because they do not align with the stereotypes associated with their sex, and whether there is an interaction with a child’s sexual orientation, as well as the long- and short-term impact on the child and the impact on other pupils. The wishes of the child concerned are not amongst the list of factors to consider.

A number of questions emerge. How long should a school wait watchfully before deciding on whether to agree to a change? How should a school judge the potential impact of social transition on other pupils? How should a school determine whether a child may have been influenced by peers or social media, and or may feel pressured to identify differently because they simply do not align with stereotypes associated with their sex? How does a school factor in whether there is an interaction with a child’s sexual orientation, in particular where a child has not yet explored or expressed this?

The draft guidance has been published alongside a consultation on the proposals. The Government says it wants responses from the likes of parents, teachers, headteachers, pupils and clinicians. It is likely to also receive feedback from lawyers and other interested stakeholders. As we anticipate that there may be changes to the draft guidance, we are keeping a watching brief and will update schools further when the guidance is finalised.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.