Schools face a “high risk” of successful legal challenges if they follow several elements of today’s controversial trans guidance, advice written by the government’s own lawyers reveals.
The leaked legal advice, issued in the last week and obtained by Schools Week, shows Department for Education lawyers flagged concern that several passages in the guidance would fail to stand up to a legal challenge.
Despite the warning, these passages were still included in the official draft guidance published today, which was signed off by Number 10 and equalities minister Kemi Badenoch.
It means the government has issued guidance its own lawyers made clear would likely lead to schools facing legal challenges that they would lose. Other warnings included the department itself would lose a legal challenge over aspects of the guidance.
A government spokesperson said: “We do not comment on leaks.
“The guidance is lawful and will help schools navigate these complex and sensitive issues, by urging caution, parental involvement, and prioritising safeguarding at all times.”
‘High risk of successful legal challenge’
The guidance states that “primary school aged children should not have different pronouns to their sex-based pronouns used about them”.
But government lawyers advised pre-publication of a “high risk of successful legal challenge to position taken on pronouns in primary and compelled speech – whether to the guidance itself or schools who follow it”.
In another passage, the document states that “where the guidance advises that schools or colleges should adopt a certain approach, or are able to set clear rules in a particular area, this should apply in the overwhelming majority of cases and be the starting point for decision making”.
But DfE lawyers stated this carried “high risk for both schools and Department”, and pointed out government law officers had “advised that operating a presumption against social transitioning would be unlawful”.
“I think most people would read ‘starting point’ as pointing schools towards a particular outcome. But there is an argument that it doesn’t steer towards one particular outcome. This could lead to schools making flawed decisions and is an avenue to challenge the guidance as being misleading.”
Lawyers recommended removing the phrase “and be the starting point for decision making”, but this made it into the final draft.
The Times reported earlier this year that Downing Street and Badenoch had wanted a full ban on social transitioning in schools, but were warned by attorney general Victoria Prentis that it would be unlawful.
‘Harder to argue the guidance is lawful’
Meanwhile, today’s guidance states, as one of five key “principles”, that there is “no general duty to allow a child to ‘social transition’”.
But the legal advice from government lawyers said there was a “high risk of successful challenge to the guidance on the basis that this statement is misleading / inaccurate”.
“We don’t make clear that there will be such a duty in some cases under [the equality act] / safeguarding / admissions legislation and we don’t have any evidence to support the implication that generally children schools / colleges will not be legally required to allow a child to transition.”
The guidance goes on to say that “in some areas, the school or college must be prepared to depart from the expected approach or from those rules in the exceptional case where it is necessary to do so to safeguard and promote the welfare of a child”.
But lawyers warned this carried a “high risk of successful legal challenge to the guidance and / or schools / colleges who adopt this approach as it conflates obligations under Equality Act with school / college’s safeguarding obligations”.
The risk of challenge is also “increased” because an “explanation of balancing test in relation to indirect discrimination” has been removed from an annex to the document on legal considerations.
They also pointed to a “restructure that removes reference to this exception throughout the guidance”.
Removal of this content also presents a “high risk for schools and the department”, the lawyers warned, and “makes it harder for us to argue the guidance is lawful, and doesn’t give schools the correct legal test to apply”.
Equality act ‘does not require a threshold of distress’
The guidance also states that on the “rare occasions” that schools approve changes to pronouns, “no teacher or pupil should be compelled to use these preferred pronouns and it should not prevent teachers from referring to children collectively as ‘girls’ or ‘boys,’ even in the presence of a child that has been allowed to change their pronouns”.
But lawyers said there was a “high risk for schools and department”.
“Without qualification could be NRLA because use of collective nouns could be indirect discrimination in certain circumstances, but given the overarching safeguarding exception applying, we think this is RLA.”
Schools Week understands NRLA means “no respectable legal argument” and RLA means “respectable legal argument”.
Lawyers also warned of a “high risk of successful challenge to guidance or schools” in relation to a passage stating that “as a default, all children should use the toilets, showers and changing facilities designated for their biological sex unless it will cause distress for them to do so”.
This is because the equality act and safeguarding legislation “does not require a threshold of distress”.
Lawyers issued a similar warning about the guidance’s statement that “a child who is gender questioning should, in general, be held to the same uniform standards as other children of their sex at their school and schools may set clear rules to this effect”.
They referred to “conflation of safeguarding [and equality act] tests”.
However the government said it is “standard practice to consult with lawyers as part of the development of any government guidance.
“More broadly, it would be completely wrong to interpret any partial legal assessments on individual sentences in a draft document as a legal assessment of a full and final document.”
Trusts body seeks legal advice
It comes as Leora Cruddas, chief executive of the Confederation of School Trusts, said her organisation would be “seeking appropriate legal advice in order to understand the legal position of schools and trusts”.
She added it was “disappointing that the government has chosen to publish this consultation as schools are breaking up, and with widespread media briefing ahead of the draft document’s publication”.
“This will make it very challenging to respond to any concerns felt by pupils, parents, and staff until schools return in the new year.”
The NAHT school leaders’ union said they would be “reviewing these draft proposals to ensure they provide useful information and support for school leaders“.
But leader Paul Whiteman added that “upon an initial look, it would appear this guidance leaves a lot of questions unanswered, meaning school leaders will continue to be placed in an incredibly difficult position”.
The ASCL union also said it would be “reviewing whether the guidance is clear and deliverable and whether it places extra workload on education staff who are already working at full stretch”.