How should schools handle transgender issues in the absence of long-awaited government guidance?

Long-awaited government guidance for single sex schools on transgender issues has been trailed over recent months. This guidance was expected to be released in early July 2023 but was initially delayed, purportedly as a result of anticipated opposition and criticism of the draft by activists. It has since been delayed further due to concerns raised by the Attorney General that some provisions may be unlawful.   

Why is the transgender guidance for schools needed?

Over recent years, gender has been an increasingly topical and divisive challenge for schools and wider society. Inconsistency in approach by individual schools has highlighted the pressing need for clearer guidance to better equip schools to meet the needs of transgender pupils.

Policy Exchange, a think tank commissioned by the government, conducted research and produced a report which was damning in its criticism of schools becoming increasingly influenced by gender ideology and simply complying with the wishes of youngsters, often without reference to their parents. 

The research report was entitled Asleep at the Wheel and suggested there is “a safeguarding blind spot when it comes to the issue of sex and gender… Safeguarding principles are being routinely disregarded in many secondary schools, which are neglecting their safeguarding responsibilities and principles in favour of a set of contested beliefs, in ways that risk jeopardising child wellbeing and safety.”

The absence of official guidance has, over time, allowed schools to plot their own course through the rocky waters of supporting and safeguarding children, working with parents, avoiding unlawful discrimination and developing their own policy around these, sometimes conflicting, perspectives.

What’s the current transgender law in the UK?

The Equality Act 2010 (“the Act”) provides protection from various forms of unlawful discrimination to people who embark upon “gender reassignment”. When the Act was drafted, it was intended to protect people embarking on a journey to permanently adopt a different sex to their biological sex, which could ultimately include surgical intervention.

It has been suggested that this should be interpreted to include protection for a person who wishes to identify in this way without physically changing their sex. This is known as social transitioning. However, this has led to confusion over whether this protection would technically cover a person who identifies as being gender fluid, or non-binary. In practice schools often adopt a risk-averse approach and assume that the protection does extend to more fluid expressions of gender.  

However, the Act has always permitted schools to discriminate on grounds of sex when exercising their admissions procedures. It is in this way that single sex schools can exist.

Transgender guidance for schools – what will the draft guidance say?

Education Secretary, Gillian Keegan, was quoted as saying that the draft guidance would include “a big dose of common sense” and that saying “’good morning girls’ is absolutely fine to say in a girls’ school”.

Widespread speculation in the press has suggested the guidance will:

  • Permit single sex schools to reject transgender pupils at admission.
  • Permit staff to decline to address children by any preferred pronouns if they have a good reason for this.
  • Require schools to inform parents if their child presents as transgender in school, whether or not the child consents to this.

There has not been any indication as to whether it will cover how schools should respond to an existing pupil who, part-way through their time at the school, expresses their wish to be trans.

How should schools act while the government’s transgender guidance is delayed?

The Education Secretary has most recently suggested that schools should “prioritise safeguarding by meeting their existing legal duties to protect single sex spaces and maintain safety and fairness in single sex sport”.

We have set out the “existing legal duties” above and it is widely acknowledged that further guidance, in addition to the existing legal framework, is desperately needed to enable schools to act fairly and consistently across the sector. So whether schools will find the Education Secretary’s latest comments helpful is debatable.

However, the emphasis on “protection” of single sex spaces and “fairness” in sport perhaps suggests that the intention will be for guidance to be weighted towards a less liberal approach, as speculation has suggested. 

The Act has always allowed schools to lawfully discriminate on grounds of a child’s sex. A single sex school will likely remain able to continue in this practice to maintain its single sex status. Schools should be clear that any decision to refuse to admit a prospective pupil is based upon the child’s sex i.e. they are not the required biological sex for the single sex setting. It is unlikely that the guidance will change this. Schools should avoid making any decision based upon any expressed gender dysphoria. 

However, there remains uncertainty as to how a single sex school could/should respond to an current pupil who, while already enrolled at the school, wishes to identify as an alternative gender. We have always held the view that subjecting such pupil to any detriment, exclusion for example, would be a highly risky strategy as it would risk a finding of unlawful discrimination on grounds of gender dysphoria or gender reassignment. After all, the child would still possess the physical biological characteristics of the required biological sex.

Where a child expresses a wish to be known by preferred pronouns that are different to their biological sex, this may present more difficult challenges for a school.  Again, the child would still possess the required physical biological sex to be enrolled or considered for admission.  So, any refusal to use preferred pronouns expressed by the child may fall foul of anti-harassment provisions in the Act. It is our view that when addressing the whole school or a class group in a single sex school, staff should be permitted to address the group as “boys” or “girls” without fear of reprisal. However, when addressing the child as an individual it seems more likely that adopting that child’s preferred pronouns would represent a reasonable and compassionate approach to that individual child’s needs and should reduce the risk of unlawful discrimination. Furthermore, this approach would demonstrate a desire to treat the child with dignity and respect.

The Teaching Regulation Agency (TRA) recently issued a teacher barring order to a teacher who refused to use a pupil’s preferred pronouns due to his religious beliefs. This decision was based on a failure to treat the pupil with dignity and respect. The TRA considered that it did not need to make any finding under the Equality Act. This suggests that a teacher who refuses to respect a pupil’s wishes could risk being banned from teaching by the TRA. However, it is not clear whether the TRA may adapt its approach if tough guidance is published and, in particular, if the law is changed in this area. Many schools have always adopted a policy whereby discussing any gender dysphoria is part of normal updates with the child and their parents.  Schools must clearly be mindful of possible exceptions, as they would be in any scenario where a child may be placed at risk of harm if a certain course of action is adopted. If disclosing the child’s wishes to parents would place the child at risk of harm in their home, for example, this would necessarily be considered as part of the school’s safeguarding risk assessment.

How Moore Barlow can help you and your school on transgender issues

Even in the absence of the draft guidance, the priority for schools should be to strike a balance in favour of the best interests and safety of all children and families, with checks and balances in place for the usual exceptions when considering child safety and welfare.

If you are navigating these issues, or responding to real life cases at school, we are here to help.  Please contact any member of our team of experts.  We want to help you get this right.

Contact our independent schools legal team