Dear Kemi: will you tackle the technical guidance?

Sex Matters has written to the Minister for Women and Equalities calling on her to ask the Equality and Human Rights Commission to urgently finish its review of the 2014 Technical Guidance For Schools (in England and Scotland) and make clear its conclusions.

If the EHRC no longer believes that the interpretation of the law is correct, it should make this clear. This would help the Department for Education in its task of developing guidance for schools on how to respond to gender-distressed pupils.

While we agree with the EHRC that the protected characteristic of “gender reassignment” may apply to children, we think the commission got it wrong in interpreting this as requiring schools to treat a pupil as if they were the opposite sex. This then leads to its misleading illustrations of direct and indirect discrimination.

Does the protected characteristic of gender reassignment apply to schools?

The Equality Act defines the protected characteristic in these terms:

“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.“

It includes not only people who have already undergone gender reassignment or are in the process of doing so, but also those who are “proposing” to undergo it (and people who have desisted or detransitioned having undergone some part of a process). Reassignment is a personal process with no requirement for medical diagnosis or treatment. No age limit is stated.

The recent case of AA, AK and others v NHS England the High Court found that the protected characteristic could apply to children (and not only those under medical supervision with a diagnosis of gender dysphoria). The court concluded:

“There is no reason of principle why a child could not satisfy the definition in s.7 provided they have taken a settled decision to adopt some aspect of the identity of the other gender.”

It noted that very young children are unlikely to satisfy the definition in practice, but that “proposing to undergo” while not “a passing whim” does not require that the “the change should be permanent”.

What does the protected characteristic means for schools?

Having the protected characteristic of “gender reassignment” does not mean that other people have to pretend that a person has changed sex. In general, having a protected characteristic means a person should not be discriminated against because of it – that is, treated less favourably than a person without the protected characteristic would be – or harassed, or victimised in a relevant situation covered by the Act. 

What is important to remember is that nothing in the Equality Act takes precedence over other statutory duties that schools have, which include their duty of care and safeguarding responsibilities for all pupils. It is not possible for a child to change sex. And the school needs to know (and has statutory duties to record and respond to) the sex of the children under its care, in order to keep them safe and treat them fairly.

The technical guidance goes wrong by forgetting this. It goes so far as describing a girl who wishes she was a boy as a “previously female pupil”.

The three examples

The technical guidance offers three illustrative examples, which we would like the EHRC to reconsider. Its analysis treats the protected characteristic of gender reassignment as meaning that a child has changed sex, or as meaning that ordinary sex-based rules and policies cannot apply to that child. This runs contrary to reality, and to schools’ statutory duties.

Changing facilities

3.20: A school fails to provide appropriate changing facilities for a transsexual pupil and insists that the pupil uses the boys’ changing room even though she is now living as a girl. This could be indirect gender reassignment discrimination unless it can be objectively justified. A suitable alternative might be to allow the pupil to use private changing facilities, such as the staff changing room or another suitable space.

The guidance assumes that it is not appropriate for a male pupil to use the boy’s changing room if he is “living as a girl”. This assumption is itself likely to result in direct gender-reassignment discrimination. Not allowing a boy who has long hair, has adopted a girl’s name and calls himself “she” to use the boy’s changing room would be gender-reassignment discrimination.

The boy does not have the right to use the girls’ changing room. A school might be able to provide alternative private changing facilities for a distressed child, but it cannot guarantee that these will always be available throughout a child’s school career.

Language

4.35 A previously female pupil has started to live as a boy and has adopted a male name. Does the school have to use this name and refer to the pupil as a boy? Not using the pupil’s chosen name merely because the pupil has changed gender would be direct gender reassignment discrimination. Not referring to this pupil as a boy would also result in direct gender reassignment discrimination.

Again we think it could be direct discrimination to lie about a child’s sex (calling a girl a boy, for example), or to confuse staff and pupils about what sex a child is. This is placing the child outside of the normal policies designed to protect them.

Uniform and pronouns

5.19 A member of school staff repeatedly tells a transsexual pupil that ‘he’ should not dress like a girl and that ‘he’ looks silly, which causes the pupil great distress. This would not be covered by the harassment provisions, because it is related to gender reassignment, but could constitute direct discrimination on the grounds of gender reassignment.

Some schools have uniforms that are the same for both sexes; others have different uniforms for girls and boys. Schools have discipline policies which include uniform infractions. Telling a child that they are not wearing the correct uniform is not discrimination.

This case example does not give detail about the uniform policy, but suggests that the teacher is speaking callously or demeaningly to the child. It also suggests that referring to a male pupil as “he” if he wishes to be called “she” is discrimination but it does not set out the reasoning for this. It is not clear how a school might be able to explain and enforce clear rules about boys and girls while calling some boys “she” and some girls “he”.

These three examples make it clear that in misinterpreting the Equality Act to mean that if a pupil has the protected characteristic of “gender reassignment” then everyone in a school would have to pretend that that pupil has changed sex, the EHRC has neglected to consider how doing so could result in the pupil being put outside the school’s duty of care and safeguarding responsibilities – and therefore suffering direct discrimination. A review is urgently needed.