Transgender rights

Why new ‘unofficial’ transgender pupil guidance is not fit for purpose

Sector organisations have tried to fill a gap in sector guidance regarding trans rights but left schools that rely on it exposed, writes Robin White

Sector organisations have tried to fill a gap in sector guidance regarding trans rights but left schools that rely on it exposed, writes Robin White

26 Nov 2022, 5:00

The rise in the number of pupils identifying as transgender and/or non-binary has not been matched by widely available guidance for schools. A partnership of sector organisations including the confederation of school trusts, the ASCL and NAHT unions, the chartered college of teaching, the national governance association and ISBL have attempted to step into the breach. Sadly, their published guidance is not fit for purpose.

It’s important to note that the sector has been let down by many instances of ghost guidance. Equality and human rights commission (EHRC) guidance was promised for many years and eventually drafted but never issued.  With the appointment of Kishwer Falkner as EHCR chair, it has been reported that fresh guidance – much less supportive of trans pupils – was drafted but could not be made legally compliant. 

Various ministers have suggested that guidance may be on the way, but nothing has emerged from the chaos that is British politics and nothing seems likely to do so soon. Other worthy-sounding organisations, such as Transgender Trend, Sex Matters and the Safe Schools Alliance have issued their own, but all are unsupportive of trans people and should be avoided.

It’s in this context that, earlier this month, the ‘unofficial’ Guidance for maintained schools and academies in England on provision for transgender pupils was published. Regrettably though, it poses significant risks for schools if followed.  Rather than setting out the challenges that trans pupils face and suggesting sensible, practical solutions, it appears to spend most time suggesting how trans pupils should not be supported and how those who do not support trans people should be accommodated. 

This publication appears to have been created by two lawyers without any involvement by trans people, pupils or those with experience of managing them. It therefore fails the ’not about us without us’ test, important in discrimination. 

It poses significant risks for schools if followed

Even more strangely for guidance produced by a pair of lawyers, they get the law wrong in a number of respects and present outlying views as mainstream in others. For example, they say that ‘deliberate repeated’ misgendering of a trans pupil by a member of staff only ‘may’ amount to indirect discrimination. But if it is ‘deliberate’ and ‘repeated’, it isn’t an error, and is done with knowledge of the pupil’s trans status. This will  (not ’may’) be direct (not indirect) discrimination and for a tertiary pupil, harassment in the alternative. 

An example of the ‘outlier’ presentation of law is the page taken to explain why, in the opinion of the authors, non-binary pupils are not protected under the ‘gender reassignment’ characteristic. Most discrimination lawyers think they have had since the case of Taylor v Jaguar Landrover, which the authors mischaracterise in the guidance.  I was counsel for the claimant in Taylor.

Perhaps the most horrific example of bad advice is the suggestion that a trans pupil must ‘out’ themselves to all the other pupils and parents or be excluded from school visits with external accommodation. The sensible and far less discriminatory course action is for the school to make its policy on trans attendees known and to allow parents to make choices based on that. But this doesn’t appear to have occurred to the authors.  

Equally awful is the recurring theme that trans pupils pose a ‘risk’ to the remainder of the school community, without ever identifying that risk.

 It seems hard to escape the conclusion that this ‘guidance’ has gone wrong at either the commissioning or writing stage and been ‘captured’ by someone who’s intention has been to exclude trans pupils.

It would take me many pages to deal with all the problems within it. In fact, I have done so and supplied those comments to CST’s CEO, Leora Cruddas.  Any school leader or other relevant person can have a copy from me, or indeed from her.

In the meantime, this soc-called ‘guidance’ should be binned. To follow it will lead to discrimination against trans pupils. Instead, a fresh process needs to be initiated by gathering a group of those with experience of managing these issues and the legalities related to them to write sensible, practical guidance to accommodate trans pupils and to deal constructively with real, legitimate concerns of others – not phantoms and spectres.

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  1. Joanne Gardner

    This is a biased and inaccurate opinion piece from Schools Week. Robin has no experience of children, safeguarding or education. Children are entitled to single sex facilities both in school and on school trips. No child should be excluded but it is not the responsibility of other children or their parents to agree to overriding safeguarding protocols. Trans pupils do not pose a risk to other pupils but male pupils pose a risk to female pupils. Both sexes are entitled to single sex spaces for dignity, safety and privacy. This is not an issue of discrimination but one of safeguarding. I am disappointed to see this from Schools Week.

    • Robin White

      Robin has extensive experience in litigation and advice about safeguarding, education and children (appearances in SENDist Tribunals, for example and how Ms Gardner thinks or knows otherwise is a mystery, as I have no idea who she is.

      She might care to reflect on her acknowledgement that trans pupils do not pose a risk but she feels able to support ‘guidance’ that demonises and excludes them. Parents impliedly acknowledge that other pupils will be present in any school environment, and if trans people are to be part of society, that will start at school.

      A little milk of human kindness towards others who may be a little different from ourselves, especially at this time of year, goes a long way.

      Bin this awful ‘guidance’ and return to good sense.

      • Rosemarie Moore

        Please can I ask what ‘good sense’ means?

        My concern is the increasingly evident social contagion element of this issue especially for those AFAB. I hope we all agree it is not the role of schools to deter or encourage gender transition, but what are schools to do when social transitioning can directly lead to blockers, which directly lead to cross sex hormones and surgery and then (for a significant number) serious regret.