The DfE’s schools guidance – the report card
New draft guidance for schools in England has been published by the Department for Education this morning. In January 2023 we set out a 10-point scoring framework for the guidance. We said it should:
- Support schools in line with the law
- Provide coherent, consistent guidance across the education system
- Direct schools to collect sex-based data
- Uphold the Admissions Code
- Uphold single-sex spaces
- Uphold single-sex sports
- Avoid undermining safeguarding
- Rule out full social transition in school
- Uphold freedom of belief and speech
- Support clear sex-based rules and consideration for gender non-conforming children.
This morning we mark the DfE’s work.
Report card
The overall approach is helpful, and has come a long way from previous draft guidance. It talks about “gender questioning children” instead of “trans children”, recognises that the belief that a person can have a ‘gender’ that is different to their biological sex is an ideology, and makes clear that schools must not treat any child as if they have changed sex.
It emphasises that schools must work with parents to safeguard children, and not treat them as unsupportive if they don’t go along with a child’s expressed wishes. It recognises the need to respect other children’s rights, and to have clear school rules.
Although it does not encourage “social transition” at schools, it suggests that schools have discretion to allow some aspects, in exceptional cases. It lists factors that it says schools should consider, but does not tie this to existing statutory processes for making decisions about children with special educational needs and disabilities.
OVERALL MARK 76% – A very good start but there is still room for improvement.
1. Support schools in line with the law. The guidance must be clear, simple and based on existing laws and regulations, and schools’ statutory responsibilities. It needs to provide school leaders with a legal “safe harbour” in the form of a model policy, backed by sound legal analysis.
6/10 – The guidance ties into existing sex-based laws and regulations and recognises that “schools and colleges have specific legal duties that are framed by a child’s biological sex”. But it does not provide a model policy or tie into statutory processes concerning special educational needs and disabilities.
In areas where the guidance suggests there may be discretion, it is unclear how schools are supposed to make decisions in practice. Schools need robust policies and processes that put safeguarding first. Teachers and school leaders cannot be expected to make decisions that are outside their competence, and schools need to have clear policies which cannot be undermined by activist teachers.
2. Provide coherent, consistent guidance across the education system. Individual schools are part of a system that educates cohorts of children from age four to 18 or 19. School leaders and governing bodies, local authorities, teachers and other staff, parents and pupils all need to share the same set of clear expectations.
6/10 – The guidance covers every year from nursery to sixth form, and both state and private schools. It provides general direction that children should not be allowed to “socially transition” at school (and particularly not in primary school). But it does not completely rule out granting special accommodations, saying that a school may wish “to accommodate degrees of social transition”. And it fails to work through the implications of decisions made at one point of time for later years.
3. Direct schools to collect sex-based data. Schools should be reminded of their statutory obligations to record, store, use and share accurate information on the (biological) sex of all pupils – not their self-declared “gender identity”, which is likely to count as “special category data”, subject to strict controls and irrelevant to their education.
10/10 – The guidance is clear that no child can change their sex at school and that “schools and colleges must record a child’s sex accurately wherever it is recorded”.
4. Uphold the Admissions Code. The DfE should state clearly that single-sex schools are under no obligation to consider any application from a child of the opposite sex: any case-by-case consideration on grounds of “gender identity” is a breach of the Admissions Code.
7/10 – The guidance spells out that schools are not required to admit a girl “as a boy” to a boys’ school or a boy “as a girl” to a girls’ school. But it makes no mention of the Admissions Code, which requires maintained schools to have clear admissions criteria. Nor does it explain that it would be an obvious breach of safeguarding to admit a child “in stealth” to a school that caters for the opposite sex.
5. Uphold single-sex spaces. Schools must be reminded of their statutory obligation to provide single-sex toilets, showers, changing-rooms and sleeping accommodation for the age groups set out in law. All pupils should be told that they must not use facilities for the opposite sex, but schools should seek to accommodate trans-identified children.
10/10 – The guidance is clear that “schools must always protect single-sex spaces with regard to toilets, showers and changing rooms”.
6. Uphold single-sex sports. Mixed-sex sports are acceptable only when they do not disadvantage girls. No gender-confused child should be excluded from activities for their own sex; no child should be permitted to join activities for the opposite sex.
7/10 – The guidance correctly states that “schools and colleges that do not provide separate sports for girls are unlikely to be offering them equal opportunities to boys”. It also emphasises fairness and safety. But it goes on to suggest that schools might consider a request for a gender-questioning child to participate in a sporting activity intended for the opposite sex. In practice we think that any school which thinks carefully about why it has sex-separated sports classes will rule this out. The guidance would be more helpful if it provided a shortcut to this conclusion.
7. Avoid undermining safeguarding. Protection for free speech and accurate data on sex are both essential for risk assessment and child safeguarding. Schools and teachers should be reminded of their obligation to work with and share information with children’s parents and guardians on all safeguarding matters. Children must not be subject to lower standards of safeguarding because they are trans-identified.
8/10 – The guidance is clear that “parents should not be excluded from decisions taken by a school or college relating to requests for a child to ‘socially transition’”. We think that application of safeguarding principles by the DfE would allow it to give even clearer guidance to schools that they should not waive sex-based rules for any child, even if parents are insistent. The failure to cross-reference to Working Together to Keep Children Safe or the SEND Code of Practice is concerning.
8. Rule out full social transition in school. It is impossible to treat any child as if they are a member of the opposite sex in a school environment. A full social transition would expose a child to unacceptable safeguarding risks as well as infringing on other pupils’ rights.
7/10 – The guidance states: “There is no general duty to allow a child to ‘social transition” and rules out large parts of what is commonly included under that label, such as recording a child as the opposite sex, allowing them to use opposite-sex facilities and letting them participate in sports with children of the opposite sex. But it leaves the door open for children and their parents to ask for a boy to be referred to as “she” and a girl as “he”, and to be granted special accommodation in uniform rules.
9. Uphold freedom of belief and speech. School policies should not restrict pupils’ freedom to hold and express lawfully protected beliefs (including in the material reality of the two sexes). They should require all children to treat each other with respect, but not to pretend that a trans-identified classmate has changed sex.
7/10 – The guidance notes that gender-identity ideology (the belief that a person can have a “gender” that is different from their biological sex) is a contested belief. It notes: “Many people believe this concept is one that reinforces stereotypes and social norms relating to sex.” But it gives mixed messages about what children should be expected to say in practice. It says preferred pronouns should not be enforced, but calls not using them “honest mistakes”. It states that a trans-identifying girl can still be referred to collectively as part of a group of girls, but doesn’t say whether she should be referred to individually as a girl or as a boy. This approach will continue to place pressure on pupils and teachers to use preferred pronouns, and encourage children to demand them.
10. Support clear sex-based rules and consideration for gender non-conforming children. Schools should use sex-based distinctions in policies and rules only where they are justified, and should consider reasonable accommodations to ensure that gender-distressed children are able to access education. This reduces the potential for both unlawful sex discrimination and unlawful gender-reassignment discrimination, and will help ensure appropriate provision for all gender non-conforming children, whether or not they are trans-identified.
10/10 – The guidance is based on this principle.
The guidance is being published for consultation (which is open until 12th March 2024), which means that the final version can be strengthened. We will be publishing our feedback and guidance to support others in the new year.