This long awaited and delayed government draft transgender guidance for schools was finally published on 19 December 2023. It’s called ‘Gender questioning children: Non-statutory guidance for schools and colleges in England’ and it is a draft for consultation that ends on 12 March 2024.
The guidance applies to all schools and following the end of the consultation period, the final version of the guidance will hopefully be published before the general election. In the meantime, it is sensible for schools to take account of the guidance, when making decisions relating to gender questioning children.
What are the main points covered by the government’s transgender guidance for schools?
The biggest impact of the draft guidance relates to social transitioning and the guidance sets out five general principles which are intended to underpin the approach to be adopted by schools. These general principles are:
- Schools and colleges have statutory duties to safeguard and promote the welfare of all children.
- Schools and colleges should be respectful and tolerant places where bullying is never tolerated.
- Parents should not be excluded from decisions taken by a school or college relating to requests for a child to ‘socially transition’.
- Schools and colleges have specific legal duties that are framed by a child’s biological sex.
- There is no general duty to allow a child to ‘social transition’.
These principles demonstrate a shift away from allowing a child to socially transition, if a child has requested to do so. The fifth principle is that there is no general duty to allow this. The guidance sets out a range of matters that will need to be taken into account before agreeing to a request to socially transition.
There is reference to taking a ‘cautious approach’ and involving parents in any decisions unless doing so ‘would constitute a significant risk of harm to the child’. The guidance refers to engaging with parents ‘ as a matter of priority’. In practice, it will be very rare for a school to have a reasonably held belief of a significant risk of harm to the child.
How does one differentiate between a risk of harm and a risk of ‘significant’ harm? This may not be easy and in the vast majority of cases, it seems unlikely that schools would make any decisions without involving parents.
What is the proposed process that schools should follow if a child requests to socially transition?
The guidance sets out the process that should be followed in response to a request from a child to socially transition. This includes waiting for a period of time before considering a request, to ensure it has been properly thought through by the child. This is called ‘watchful waiting’. It is unclear how long a school should wait. This could be several weeks, a term or even longer. It would appear that the guidance anticipates that a school should inform parents about a request to socially transition at the outset, during the period of ‘watchful waiting’.
Following a period of ‘watchful waiting’, if the child would still like their request to be granted, the guidance sets out a number of points that schools are advised to take into account. These are:
- The school’s safeguarding obligations i.e. what is in the best interests of the child and it is stated that this may not be the same as the child’s wishes.
- The view of parents. Parental consent is stated to be required in the vast majority of cases. Accordingly, if the parents are opposed to their child socially transitioning e.g. for religious reasons or simply because they consider that that social transitioning is wrong before their child is 18, this could be the end of the matter.
- The age of the child. The guidance differentiates between younger children in primary schools and older children – so 11+. Requests from younger children should be treated with greater caution. It is likely that the practical implication of this is that requests from children younger than 11 or 12 years old, will be refused.
- Any relevant clinical information that is available.
- The seriousness and context of the request. This includes a child’s SEN and any interaction with a child’s sexual orientation.
- The long- and short-term impact on the child. In practice, this will be extremely difficult for schools to assess and is likely to mean that schools will be even more cautious.
- The impact on other pupils including any safeguarding concerns. This could mean that a school may refuse a request, because of the potential impact on other pupils. Again, this may be very difficult to assess and is likely to result in a cautious approach.
What is the proposed approach to protected religious or other beliefs?
The guidance refers to communicating any agreed changes to other pupils and staff and states that any protected religious or other beliefs held by staff and parents must be respected. It is unclear what this means in practice.
It may be that certain schools with a religious ethos will be less likely to agree to a child’s request, because of the impact it may have on others within the school.
Specific requests and a school’s legal duties
The guidance sets out the different types of requests that could be made and what schools’ legal duties are in relation to them, as well as where a school may exercise its discretion. Examples given include:
- A school’s admissions register must reflect the child’s legal name, date of birth and their biological sex. An informal name i.e. ‘known as X’ may be agreed, having consulted with the child’s parents.
- Pronouns – primary school aged children should not have different pronouns to their biological sex based pronouns. For older children, a request for a change may be declined by the school. Schools should consult the child’s parents and consider all the relevant points set out above. Significantly, the guidance states that ‘It is expected that there will be very few occasions in which a school or college will be able to agree to a change of pronouns’ and no teacher or pupil should be compelled to use these preferred pronouns and no child should be sanctioned for ‘honest mistakes’ when adapting to a new way of interacting with another pupil. In practice, schools are likely to err on the side of caution and refuse requests in the majority of cases.
- Single sex spaces are protected (i.e. toilets, showers and changing rooms) and the default is that children will use the spaces designated for their biological sex unless this will cause them distress in which case it is likely that they will use a separate space.
- A transitioning child is in general required to adhere to the same school uniform as other children of their biological sex. In practice, many schools offer flexibility regarding uniforms with trousers being available to each biological sex.
- Regarding PE and sport, the guidance advocates a more relaxed approach to mixed-sex participation in sports for primary age children. This is interesting in light of the stated view that requests for social transitioning from younger children should be treated with even greater caution and that such children should not have different pronouns to their biological sex-based pronouns.
- For sports where physical differences between the sexes threatens the safety of children, schools should mandate separate-sex participation. The guidance states that there are no exceptions to this and it goes on to say that even when safety is not risked by mixed-sex participation, schools should ensure that sports are fair. In practice, this is likely to mean that in the majority of cases, participation based on biological sex will prevail.
- The guidance confirms that single-sex schools can refuse to admit pupils of the other biological sex. However, a school may not refuse to admit a child of the same biological sex that is questioning their gender. What is not stated is how a single-sex school should deal with an existing pupil who wishes to socially transition. It is likely that the points set out above will apply and in practice such requests are more likely to be declined, based on the impact on other pupils.
How Moore Barlow can help
We provide bespoke advice to schools on these and other issues relating to pupils and we would be delighted to help you if you have any questions regarding the practical application of this guidance. Please get in touch with our Independent schools team for assistance.
Would you like to take part in the consultation?
Take part in the online survey here – Department for Education Online Survey