“Gender Questioning Children”: government consults on draft guidance

At the end of 2023, the Department for Education (DfE) published draft, non-statutory guidance to support schools and colleges in making decisions regarding children who are questioning their gender.

As part of its 12-week consultation on the guidance, which closed on 12 March 2024, the DfE sought views from stakeholders, including parents, teachers, headteachers, pupils and clinicians.

This article looks at the guidance and the response the draft guidance has received, including from the Equality and Human Rights Commission (EHRC).

The DfE is expected to publish its response to the feedback received during consultation in the coming months.

The guidance at a glance

• The non-statutory guidance sets out to provide practical advice for schools and colleges to follow to help them make decisions regarding children who are questioning their gender.
• It sets out the types of requests these education organisations may receive from children questioning their gender, such as for a change of name and sex in registration records; being known by an alternative name; alternative pronouns; and uniform changes. It also sets out the legal obligations on schools and colleges when faced with such a request.
• The full draft guidance, as consulted on by the DfE, can be viewed here.

The draft guidance does not cover what children are taught about the topic of gender reassignment. The DfE has confirmed that further detail on this will be included when the revised statutory guidance on relationships, sex and health education is published for consultation.

Response to the draft guidance

While the publication of the guidance to support schools and colleges in relation to children questioning their gender was generally welcomed, some  stakeholders have suggested areas where they feel the guidance should be modified or evolved.

This includes the observation that the guidance fails to define the term ‘gender reassignment’ as a protected characteristic under the Equality Act, which would likely apply to almost all gender questioning and transgender students.

The guidance also refers to social transitioning as being a safeguarding concern which requires parents to be informed (unless there is a “significant risk of harm”). Members of the National Education Union expressed concern over this aspect of the guidance; they have recently opposed the compulsory ‘outing’ of pupils to parents, due to the possibility that harmful consequences may arise for children.

The Association of School and College Leaders and the NASUWT teachers union have suggested that the guidance ignores legal advice and could risk schools inadvertently discriminating against pupils.

In their response to the DfE’s consultation, the Equality and Human Rights Commission (“EHRC”) set out its detailed suggestions as to how the guidance could provide better support to schools and colleges.

Introducing its response, the EHRC states:

Some of the key recommendations of the EHRC are as follows:

Language and terminology

The guidance should make clear that despite a child not being old enough to legally change their sex by acquiring a Gender Recognition Certificate under the Gender Recognition Act (2004), they can have the protected characteristic of gender reassignment if they have stated that they identify as, or wish to live as, the opposite sex.

Safeguarding

In order to mitigate the risk of schools breaching their safeguarding obligations, the guidance should highlight the need for schools to consider whether sharing information with parents where the circumstances do not meet the significant risk of harm threshold, is compatible with their safeguarding duties.

Pronouns

Page 13 of the DfE’s guidance suggests that teachers should not be compelled to use preferred pronouns. However, case law recognises that employers can apply policies to require staff to recognise a trans person’s preferred pronouns, so long as it is undertaken proportionately so as to respect the rights of all affected groups. It would be helpful if the guidance stated this.

School uniform

There is a risk of indirect discrimination if a school requires all children of the same sex to adhere to a sex-based uniform policy,  as such a policy would put a child with the protected characteristic of gender reassignment at a disadvantage. If requiring a child with the protected characteristic to dress according to their sex at birth, the school must be able to objectively justify it as a proportionate means of achieving a legitimate aim.

Schools may want to consider offering flexible uniform options for both sexes, wherever possible. If a school does not offer non-gendered uniform, they should develop a clear policy for how to deal with requests from children who do not wish to dress or present as their sex recorded at birth.

Provision of facilities

The guidance could provide a clearer explanation of the balancing of rights that schools need to take into account when planning the provision of facilities. Whilst gender neutral toilets may be beneficial for gender questioning children, some types of gender-provision could disadvantage natal females, who are more likely to require greater privacy during puberty. Schools should ensure they minimise any discriminatory impact for all learners, as far as is practicable.

Single sex schools

Whilst single sex schools can lawfully choose to admit or refuse a learner of the opposite birth sex, the guidance should acknowledge  that a school may be at risk of indirect gender reassignment discrimination if it applies a blanket policy to not accept children of the opposite birth sex in any circumstances. Whilst such a policy would not necessarily be unlawful, the school would need to be able to objectively justify the policy as a proportionate means of achieving a legitimate aim.

You can read the EHRC’s full response here.

Next steps

The 12 week consultation ran for 12 weeks, and ended on 12 March 2024. The DfE’s response will be published over the next few months.

We anticipate that the draft guidance will be amended, in particular to follow some of the recommendations of the EHRC and we will update schools, local authorities and other interested clients once the final guidance has been published.

If you have any questions about this guidance, or queries on how dealing with gender issues may affect your legal obligations, please get in touch with our specialist education lawyer Trish D’Souza.

Blake Morgan also ran a training session on 8 May 2024 about the safeguarding obligations on schools and academy trusts, find out more about this here.

This article has been co-written by Trish D’Souza, Charles Collar and Eloise Knight.