New sector guidance on provision for trans pupils suggests schools may need to provide both gender neutral and single-sex toilets and that uniform policies should be as “inclusive as possible”.
The unofficial advice for maintained schools and academies in England has been jointly published by school leaders’ unions ASCL and the NAHT, the National Governance Association, the Institute of School Business Leadership, the Chartered College of Teaching and the Confederation of School Trusts.
Ahead of anticipated new official guidance from the Department of Education, the briefing is an attempt by the organisations to help leaders get to grips with the “context of recent developments” and the wider law.
“The rights and protection of transgender people are currently contested and rapidly developing areas of law,” the guidance states.
“Set against this backdrop, decisions about how to support transgender pupils can be complex and sensitive.”
Here are the main recommendations for schools.
1. Schools may need gender neutral and single-sex facilities
According to the guidance, to meet regulatory requirements for all pupils, schools may need to provide both gender neutral and single-sex facilities.
This is because it could be unlawful for schools to permit pupils of one sex to use the toilet facilities provided for pupils of the other sex “unless those facilities were each in a single lockable room intended for use by one person”.
School premises regulations stipulate that toilet facilities for boys and girls aged 8 or over must be separate. The organisations said they had received “clear independent legal advice” that the equality act does not override this.
The act protects people against unlawful discrimination because of protected characteristics including gender reassignment (where a person is proposing to undergo, is undergoing or has undergone a process to reassign their sex).
The briefing refers to legal sex – the biological sex recorded on a person’s birth certificate. People aged 18 and over can change their legal sex by obtaining a gender recognition certificate.
2. Names and pronouns should ‘not be undertaken lightly’
The guidance around names and pronouns is less clear.
It states than in accordance with the human rights act, schools should “normally work”, with the agreement of parents, “towards respecting the wishes of pupils to be the people they wish to be”.
This includes being known by a different name or addressed with different pronouns.
But it points to a finding of the Cass Review Interim Report that “affirmation and social transition are not neutral acts” and could have a “significant impact” on a pupil’s psychosocial functioning.
The review also found that “doing nothing” for a child in distress was also “not a neutral act”.
As a result, the unofficial guidance suggests social transition “should not be undertaken lightly” and some schools may wish to take a “more cautious approach” .
It notes, however, that staff deliberately and repeatedly misgendering pupils could amount to discrimination because of the protected characteristic of gender reassignment.
While case law is still developing, it advises school to make it clear in codes of conduct for staff and pupils that all speech must be “courteous and respectful at all times” and that they must show “mutual respect and tolerance” for those with different beliefs about gender identity.
3. Gillick-competent pupils can socially transition at school without parents knowing…
Where children wish to transition socially at school without the knowledge of their parents, “the law is clear” that their views “should prevail” if they are Gillick-competent, the guidance states.
Gillick competency is used in medical law to decide whether a child is able to consent to their own medical treatment.
But the briefing admits that assessing Gillick competence in this area is “far from straightforward” and is likely to require legal advice.
Consideration will need to be given to whether a pupil will be able to understand the implication of the decision.
4. …but schools can support ‘open conversations’ with parents
Even if a child is deemed to be Gillick-competent, the guidance says this does not prevent schools from working with them in an “appropriate and sensitive way” to help them understand the implications of their decision not to inform parents.
Examples of this include supporting pupils with a planned disclosure which they can choose the timing of, as opposed to an accidental disclosure “which may otherwise be inevitable”.
In some cases, the guidance adds, it might be appropriate for trusted staff to support pupils to “open the conversation” with their parents or carers.
5. Schools can teach that ‘gender critical’ beliefs are protected
DfE’s relationships and sex education (RSE) statutory guidance for secondary pupils states that pupils should be taught the “relevant legal provisions” about gender identity, but does not stipulate which provisions.
The guidance says these could include the fact that gender reassignment is included among the protected characteristics within the equality act.
But it also suggests pupils could be taught that the same act protects single-sex spaces, services and sports and does not necessarily entitle transgender people to access them.
Meanwhile, it adds RSE lessons could also cover that gender critical beliefs, as well as the belief that gender is a matter of self-identity, are currently considered protected beliefs.
6. Uniform policies should be ‘as inclusive as possible’
Elsewhere in the briefing, the organisations draw on 2021 non-statutory uniform guidance from the DfE.
It advises that when making decisions about uniform policies, schools should take their obligations under the human rights act and equality act into account and consider the impact on pupils who share a protected characteristic.
The unofficial guidance therefore says that governing bodies should make uniform policies “as inclusive as possible” to accommodate the cultural needs of pupils and to avoid gender stereotyping.
It suggests schools could have a single list of uniform items with regard to the “needs of pupils with different protected characteristics” and permit pupils to wear any item on the list.
But it adds that this “should not involve” the creation of a gender neutral uniform “which requires girls to wear trousers”.
7. Single-sex schools can discriminate on the grounds of sex
Single-sex schools are lawful and can continue to discriminate in their admissions on the ground of sex, the guidance says.
It adds that a school’s single-sex status would not be compromised if it allowed a current pupil who transitions to remain in the school because they would legally remain the same sex.
But the organisations note that whether it is lawful for single-sex schools not to consider trans pupils of the other legal sex “is more contentious”.
The legal advice they received while drawing up the guidance was that this would be lawful in view of a single-sex exemption in the equality act.