As part of its consultation that opened on 19 December 2023 and closed on 12 March 2024, the previous Conservative Government published draft non-statutory guidance for schools and colleges on gender questioning children (the Guidance). It was expected that the results of this consultation would be published in 2024, but with the recent change in Government, this has been delayed.
The previous Government also published, as part of its consultation that opened on 16 May 2024 and closed on 11 July 2024, draft statutory guidance on teaching sex education in schools (the Sex Education Guidance). Unlike the Guidance, the Sex Education Guidance will be statutory, meaning that schools will have to follow it, unless there are exceptional circumstances.
This article seeks to explain the legal context surrounding the Guidance, why the lawfulness of parts of the Guidance has been questioned, and the steps that should be taken to resolve them. In addition, it will cover the Sex Education Guidance and what action the new Labour Government may take.
Existing statutory obligations relevant to education providers
Below is a summary of the current statutory obligations placed on schools which relate to the areas addressed in the Guidance.
Education Act 2002
- Sections 78 and 79 oblige schools to follow a curriculum that promotes the spiritual, moral, cultural, mental and physical development of pupils and of society, and prepares pupils for later life.
- Section 80B requires schools to have regard to guidance published by the Secretary of State in relation to relationships, sex and health education.
- Section 175 requires schools to make arrangements with a view to safeguarding and promoting the welfare of pupils and to have regard to relevant guidance.
Education (Pupil Registration) (England) Regulations 2006
- Schools must keep an admissions register of all of its pupils’ legal names and sexes.
The School Premises (England) Regulations 2012 and the Education (Independent School Standards) Regulations 2014
- The regulations impose statutory requirements for both maintained and independent schools to provide sex-separated toilets for pupils aged eight or over (apart from individual toilets in fully enclosed rooms), and suitable changing accommodation and showers for pupils who are aged 11 years or over at the start of the school year.
Equality Act 2010
Chapter 1 Part 6 prohibits discrimination, harassment and victimisation in schools in the way in which schools treat their current, former and prospective pupils. It does not govern the horizontal relationship between pupils themselves.
In particular, schools are under a duty not to discriminate in relation to:
- admissions
- exclusions
- provision of education
- access to any benefit, facility or service
- any other detriment
Further, the Equality Act protects individuals from being discriminated against if they have the protected characteristic of gender reassignment. This is defined as:
“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”
A person in law is “an expression denoting an entity that the law recognises as having its own distinct personality” meaning natural persons and corporate organisations able to act in their own right are capable of possessing legal rights and liabilities. There is no age limit to this very wide definition.
The definition of gender reassignment is equally wide. There is no requirement for an individual to have undergone any medical treatment or surgery. Gender reassignment under the Equality Act is seen as a personal process, rather than a medical one. It just requires a proposal to change their gender, which does not need to be irrevocable.
Whilst children under the age of 18 cannot apply for a gender recognition certificate to legally change their gender they nonetheless may be protected against discrimination on the grounds of gender reassignment under the Equality Act.
The courts have grappled with the definition of gender reassignment under the Equality Act. In the employment tribunal decision in Taylor v Jaguar Land Rover Ltd the claimant was deemed to fall within the protected characteristic of gender reassignment despite having no intention to dress as a woman every day nor undergo gender reassignment surgery.
Although in that case the claimant was an adult, this approach suggests that children who are not old enough to acquire a gender recognition certificate, may fall within the protected characteristic of gender reassignment if they have stated that they wish to live and identify as the opposite sex. This does not necessarily mean those that are gender questioning will be protected but as the law stands at present, it is a possibility, and ultimately it will be a decision for the courts and would need to be assessed on a case-by-case basis.
In line with the Equality and Human Rights Commission’s (EHCR) response to the Guidance, schools need to draft a policy that balances the need to avoid directly or indirectly discriminating against children with the protected characteristic of gender reassignment, and other protected characteristics such as sex or religion. The wide definition of gender reassignment, the uncertainty of whether those who are gender questioning will be protected under the Equality Act 2010, and the difficulty of balancing different protected characteristics and views are likely to pose an issue for schools when preparing such a policy.
Outcome of the Cass Review and further developments
In January 2020, a Policy Working Group (PWG) was established by NHS England to undertake a review of the published evidence on the use of puberty blockers and masculinising/feminising hormones in children and young people with gender dysphoria to inform a policy position on their future use. Given the increasingly evident polarisation among clinical professionals, Dr Cass was asked to chair the group as a senior clinician with no prior involvement or fixed views in this area.
The current evidence base suggests that children who present with gender incongruence at a young age are most likely to desist before puberty, although for a small number the incongruence will persist. It also suggests there are other factors which may lead to gender incongruence, such as autism and the influence of peers and social media. The Cass Review recommended greater support and advice for parents and families about how best to support their children in a balanced and nonjudgemental way. Helping parents and families to ensure that options remain open and flexible for the child, whilst ensuring that the child is able to function well in school and socially, is an important aspect of care provision and there should be no lower age limit for accessing such help and support.
In response to the Cass Review, on 29 May 2024 the Conservative Government passed temporary emergency legislation to ban puberty blockers unless they are being provided as part of an authorised clinical trial. The Medicines (Gonadotrophin-Releasing Hormone Analogues) (Emergency Prohibition) (England, Wales and Scotland) Order 2024/727 (the Order) took effect on 3 June 2024 and was due to expire on 2 September 2024 but has been extended until 26 November 2024. The Secretary of State’s opinion was that the Cass Review showed evidence that was sufficiently concerning to require an urgent change to the law to avoid private and overseas prescriptions being given to children in the UK.
The lawfulness of the Order was challenged by TransActual CIC, a community interest company seeking to improve life for transgender people in the UK, and a 15-year-old transgender female who was unable to access puberty blockers as a result of the Order.
The High Court held that the Order was not unlawful (R (TransActual CIC and Anor) v Secretary of State for Health and Social Care and Anor). However, it did recognise the evidence it heard about the difficulties gender questioning children have experienced in obtaining access to UK registered GPs and mental health services since the Order was made (which has meant some children and adults are going to EEA/Swiss providers instead). The High Court heard evidence indicating that on 30 April 2024 there were 5,676 children and young people on the waiting list for gender services, most of whom had been waiting between two and five years. The Good Law Project also provided evidence indicating that four young people have made suicide attempts following the ban on puberty blockers.
TransActual has stated that it intends to appeal this judgment, and that it is seriously concerned about the safety and welfare of young transgender people. It has also been reported that the British Medical Association has called for the ban to be lifted.
What the Guidance says and why is it considered contentious?
When a child is questioning their gender, they may ask a school to make certain changes to accommodate their social transition. Social transition refers to the process under which people change their name, pronouns or want to use different facilities.
The Guidance sets out five principles for schools to consider when responding to such a request, with principles three and five being particularly contentious.
- Principle 1: schools and colleges have statutory duties to safeguard and promote the welfare of all children.
- Principle 2: schools and colleges should be respectful and tolerant places where bullying is never tolerated.
- Principle 3: parents should not be excluded from decisions taken by a school or college relating to requests for a child to socially transition. The guidance suggests that where a child confides in their teachers about their gender identity, teachers can listen without automatically alerting parents but, for safeguarding reasons, confidentiality cannot be promised. The only exception being where this may raise a significant risk of harm for the child. It is highly likely, however, that there will be circumstances where children do not want their parents to be involved. For those children with the requisite capacity to competently decide that they do not want their parents involved, it could give rise to a breach of confidentiality if a school ignores their wishes and involves their parents.
- Principle 4: schools and colleges have specific legal duties that are framed by a child’s biological sex.
- Principle 5: there is no general duty to allow a child to socially transition. This principle may raise risks of discrimination. A school could be deemed to be treating a student less favourably by applying a presumption against them being able to socially transition at school. For example, the Guidance states that schools must record a child’s legal name in the admissions register to comply with its statutory duties. This approach is not consistent with the Equality Act and, if followed, could present a legal risk for schools as it could be directly discriminatory to allow a non-transgender child to be known by another name, but not a child who is socially transitioning. This issue has been raised by the EHCR in its response to the consultation.
The Guidance is explicit in that primary school aged children should only be referred to by their (birth) sex-based pronouns. For older children, it suggests that schools do not need to specify pronouns and can decline a request to change a child’s pronouns. The Guidance states that it is expected that there will be very few situations in which schools will be able to agree to a change in pronouns. Being misgendered is, understandably, a hurtful experience which can cause transgender individuals to feel invalidated. Continuing acts of misgendering pupils may be seen as treating an individual less favourably than others and/or subjecting them to a detriment. It could also be argued that the deliberate misgendering of a child by a teacher could amount to harassment and/or victimisation.
Accordingly, following the Guidance does raise issues as to potential non-compliance with the existing Equality Act legislation and therefore leaves schools at risk of challenge in following it.
What the Sex Education Guidance says about gender reassignment
The Sex Education Guidance states:
- Pupils should be taught the law about gender reassignment and schools should be clear that an individual must be 18 before they can legally reassign their gender. The guidance states: “This means that a child’s legal sex will always be the same as their biological sex and, at school, boys cannot be legally classified as girls or vice versa.”
- If a child is questioning their gender, schools should refer to the Guidance.
- Schools should not teach about the broader concept of gender identity due to it being a highly contested and complex subject.
- If asked about the topic of gender identity, schools should teach the “facts of biological sex and not use any materials that present contested views as fact, including the view that gender is a spectrum.” It also stated that schools should consult with parents on the context of external resources on this topic in advance and make all materials available to them on request.
Similarly to the Guidance, this raises issues as to compatibility with existing Equality Act legislation and puts schools in a difficult position whereby they may be open to challenge if they either choose to follow or depart from the Guidance.
Does the Equality Act 2010 provide sufficient protection for schools and gender questioning children?
Society has moved on significantly in the 14 years since the Equality Act was introduced in 2010. It is unlikely that the legislators foresaw the myriad of issues that would arise with gender reassignment, particularly in respect of school aged children. The Cass Review, the Guidance, and the Sex Education Guidance all raise the question of whether the Equality Act needs review and amendment.
By way of example, the Equality Act 2010 uses the phrase “transsexual” which is now considered largely obsolete, with the term “transgender” or “trans” being more commonly used.
In the context of school policy and safeguarding, it would provide greater certainty for schools if the Equality Act 2010 was amended to ensure it was consistent with any and all government guidance. For example, if it is the Government’s intention for school aged children to be deemed “gender questioning” rather than “trans”, it would be sensible for this to be reflected in the Equality Act perhaps by having a general exception similar to that which exists regarding single sex schools or applying an age qualification to the definition of a person for the purposes of the Equality Act, so that the protected characteristic of gender reassignment requires a person to be aged 18 or over. What should not happen is for Government policy to be brought in through guidance, leaving schools to grapple with the legal consequences.
These are unquestionably difficult, emotive and contentious issues. The authors are not expressing any view on what amendments should be made, rather that there exists a need to recognise that the law must be consistent with Government guidance and policy. Any move to limit the protection of children from gender reassignment discrimination will be highly controversial and subject to legal challenge, all the more reason for it to be carefully considered and debated at the highest level so that a clear statutory pathway can be adopted. The alternative is that the Guidance and Sex Education Guidance are implemented without amendments to current legislation, exposing any school following them to the risk of legal action being brought against it for discrimination.
What might the new Government do?
Both the Guidance and the Sex Education Guidance were products of the previous Conservative Government. The new Government made the following promises in its manifesto:
“Labour will finally deliver a full trans-inclusive ban on conversion practices, while protecting the freedom for people to explore their sexual orientation and gender identity.
We will also modernise, simplify, and reform the intrusive and outdated gender recognition law to a new process. We will remove indignities for trans people who deserve recognition and acceptance; whilst retaining the need for a diagnosis of gender dysphoria from a specialist doctor, enabling access to the healthcare pathway.”
We will have to wait and see what the new Government will introduce in order to achieve these aims and what the future may be for the Guidance and the Sex Education Guidance. It is perhaps unlikely, however, that the new Government will be quick to amend the Equality Act, given in its manifesto it stated: “Labour is proud of our Equality Act and the rights and protections it affords women; we will continue to support the implementation of its single-sex exceptions.”
In conclusion
Whilst clarity on this subject is clearly needed for the education sector, the Guidance needs to reflect current legislation, in particular the Equality Act, or else the relevant legislation needs to be amended. The issues that are arising on this topic merit full and comprehensive consideration and debate, and schools, students and parents should understand their respective rights and entitlements.
It remains to be seen what direction the current Government will take on this subject and how this will impact upon the draft Guidance and Sex Education Guidance. We would note that, even prior to the General Election, it had been said that the Guidance might amount to a “high watermark” from which the final guidance may well resile. At this stage, we will have to wait and see whether the issues discussed in this article are addressed and surmounted.
Authors: Abigail Trencher, Partner, Sara Sayer, Partner, Josie Beal, Senior Associate and Natalie Kent.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2024.