The following is a guest post by Clare Feikert-Ahalt, a senior foreign law specialist at the Law Library of Congress covering the United Kingdom and several other jurisdictions. Clare has written numerous posts for In Custodia Legis, including Revealing the Presence of Ghosts; Weird Laws, or Urban Legends?; FALQs: Brexit Referendum; 100 Years of “Poppy Day” in the United Kingdom; and 100 Year Anniversary of Restrictions on Alcohol in England and Wales for Those Under 18.
Policies and laws related to the rights of transgender individuals are frequently discussed by governments and other decision-making bodies around the world. The Law Library’s Global Legal Monitor has various articles on this topic, including developments in different countries regarding legal gender, gender-affirming treatments, and the participation of transgender people in sports. Recently, in England, the government published a non-statutory draft Guidance for Gender Questioning Children, which sets out how schools should respond to requests from children who wish to socially transition, meaning that they wish to be treated as the opposite of their biological sex, such as by wearing different school uniforms, changing their name, or using different facilities.
The guidance was developed taking into account the conclusions of the Cass Review of Gender Identity Services for Children and Young People, which noted that a social transition is not a neutral act. The press release states that “proper use of this guidance means social transition, in practice, should be extremely rare when the appropriate safeguards are put in place and the child’s best interest taken into account.”
The guidance acknowledges that children under the age of 18 cannot obtain a gender recognition certificate and therefore cannot legally change the sex they were born with, thus a child’s legal sex will always be the same as their biological sex. When defining the term gender identity, the guidance notes that it:
is a contested belief. It is a sense a person may have of their own gender, whether male, female, or another category such as non-binary. This may or may not be the same as their biological sex. Many people do not consider that they or others have a gender identity at all. (Guidance at 6.)
The guidance thus deals with how to approach the social transition of a child to a gender identity that does not match their biological sex.
In the press release announcing the publication of the guidance, the government stated that it has put the best interests of the child first, and adopted a parent approach, which is at the core of the guidance. In almost all situations, the guidance provides that parents should be consulted before any decision is made.
The guidance notes that there is no general duty on schools to allow a child to socially transition, that schools are not required to accept all requests for social transitions, and that a cautious approach should be adopted. This does not mean that a school has to refuse a request for a social transition, but if it decides it will accommodate a request, “a cautious approach should be taken that complies with legal duties. Some forms of social transition will not be compatible with schools’ and colleges’ statutory responsibilities.” (Guidance at 6.) The guidance states that schools and colleges (colleges provide education for 16-18-year-olds) “should not proactively initiate action towards a child’s social transition. Action should only be considered after it has been explicitly requested by the child.” (Guidance at 9.)
Determining Whether to Accommodate a Social Transition
The guidance states that where schools and colleges wish to accommodate a social transition, they should wait for some time, referred to as “watchful waiting,” “to ensure it is a sustained and properly thought through decision.” (Guidance at 9.) The child’s parents should be made aware of the child’s wishes unless this would raise a significant risk of harm to the child, which the guidance anticipates will only arise in rare situations. Once a period has elapsed, the school should consider several factors, including their safeguarding obligations, the views and, in the majority of cases, consent of the child’s parents, the age of the child, any clinical information the parents choose to make available to the school, the seriousness and context of the request (including if the child has been influenced by peers or social media), and both the long and short term impact on the child, along with the impact on other pupils. Once a decision has been made, all staff are expected to support the child in a consistent way. The guidance specifically states that staff members may not adopt any changes unilaterally, such as calling a child by a new name or pronouns.
Addressing Change When a Social Transition is Accommodated
In cases where a social transition is agreed to, the guidance states “the school or college should communicate this to other pupils and staff where it is necessary and proportionate to do so. This should be done sensitively, without implying contested views around gender identity are fact.” (Guidance at 11.) The guidance further provides that schools and colleges
should only agree to a change of pronouns if they are confident that the benefit to the individual child outweighs the impact on the school community. It is expected that there will be very few occasions in which a school or college will be able to agree to a change of pronouns. (Guidance at 13.)
With regard to a child’s pronouns, the guidance states that primary school-aged children (ages 5-11) “should not have different pronouns to their sex-based pronouns used about them.” (Guidance at 13.) For older children, schools are not required to specify which pronouns are used for each child. When requested, the factors above must be considered and the school may decline a request to change a child’s pronouns.
The guidance states that where schools permit a child to change their pronouns, no child or teacher will be compelled to use the preferred pronouns and there must be no sanctions for those who do not use these pronouns, but the child’s preferred name should be used. While the guidance is clear regarding this, it also expressly provides that bullying should not be tolerated. (Guidance at 13.)
Registration Requirements
The Education Act 1996, the Education (Pupil Registration) (England) Regulations 2006, and the Data Protection Act 2018 provide that the registration of a child can only lawfully include the sex they were born with and their legal name. For all schools, the registration must include the child’s legal name and biological sex, but in cases where a school is accommodating a social transition, a note can be included that states the child should be ‘known as’ and their new name if the steps above have been met.
Single-sex schools can refuse to admit children of the other biological sex, but cannot refuse to admit a child of the same biological sex they cater for, even where the child is questioning their gender identity.
School Uniform Requirements
Schools across England typically have uniform requirements, with the policy being set by the schools themselves with the main legal requirement for uniforms being that the cost should not be excessive. While some schools have moved towards a unisex policy, which provides flexibility for children whose social transition is being accommodated, others have different uniform requirements for girls and boys. In cases where schools have different uniform requirements, a child who is questioning their gender should typically be required to meet the uniform requirements that conform with their biological sex, unless the school has made a decision to accommodate the child’s social transition, using the factors listed above. (Guidance at 16.)
Use of Single-Sex Spaces
The guidance provides that, in all cases, schools must protect single-sex spaces such as toilets for children over 8 years old and showers and changing rooms for children over 11 years old. Any support to a social transition must not allow access to spaces that do not match the biological sex of the child and that which is assigned to the facilities. This is required to meet the legal requirements contained in the School Premises (England) Regulations 2012 and the Education (Independent School Standards) Regulations 2014. In cases where using facilities that match the child’s biological sex causes them distress, schools and colleges should find alternative arrangements for the child, which could include providing access to the facilities at a different time to the other children. (Guidance at 14 et seq.)
Participation in Sports
In cases of sports, the guidance is clear that in cases where
physical differences between the sexes threaten the safety of children, schools, and colleges should adopt clear rules that mandate separate-sex participation. There can be no exception to this. Boys constitute more of a risk to girls because they are generally stronger, larger, and heavier than girls, especially when they are going through or have been through puberty. It would not be safe for a biological boy to participate in certain sports as part of a teenage girls’ team. (Guidance at 17.)
It further notes that in sports where safety permits mixed-sex participation, for competitive sports schools and colleges must ensure that it is fair and that mixed-sex sports are unlikely to offer equal opportunities for girls and boys. (Guidance at 17.)
Legal Basis
While the guidance itself is non-statutory in nature, many legal considerations were taken into account, including duties under the Human Rights Act 1998 for publicly funded schools and colleges to not act in a way that is not compatible with the rights set out in the act. The Equality Act 2010 also applies to public and private schools. This act includes the Public Sector Equality Duty, which places a general duty on public schools and colleges to have due regard to the need to eliminate unlawful discrimination, harassment, and victimization in the exercise of their functions. The government stated that the guidance includes areas that have not been tested in the courts.
Next Steps and Reaction
The government is currently seeking public opinion on the draft guidance, with the consultation period running until March 12, 2024.
The draft guidance is a hot-button topic and reactions have varied widely from welcome acceptance to concern that it does not go far enough on both sides. Some members of the government, and some parents whose children’s pronouns had been changed at school without their knowledge, have welcomed the guidance. Other politicians think it does not go far enough and are unhappy that social transitioning is allowed in schools at all. Former Prime Minister Liz Truss expressed concern that new legislation would be needed to close loopholes in the law.
The draft guidance has been met with criticism elsewhere. Teachers have expressed concern that it leaves several questions unanswered, which will continue to place schools in a difficult position. Three major children’s charities have been reported as expressing concern that the guidance was published without consulting children and young people. Stonewall, a charity advancing LGBTQ+ issues, compared the guidance to section 28 of the Local Government Act 1988, which inserted section 2A into the Local Government Act 1986, prohibiting schools from promoting homosexuality, or teaching “the acceptability of homosexuality as a pretended family relationship.” Stonewall claims the guidance is legally unworkable and contrary to equality laws.
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