New draft guidance for schools in England has been published by the Department for Education this morning.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.
The overall approach is helpful, and has come a long way from previous draft guidance.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.
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.
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.
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.
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.
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. 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. 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.
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.
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.
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.