Independent counsel agrees with our guidance for schools

Last year Sex Matters, together with Transgender Trend, produced guidance for schools.

The Good Law Project recently published legal advice by Dan Squires QC. His conclusions support much of our guidance, although he disagrees with us on one important point – how simple and straightforward it should be to apply and communicate single-sex rules to protect and meet the needs of all children.

Concern	Our guidance on the Equality Act	Dan Squires’ answer
Should schools allow children to change their names?	Yes, if that is the same rule for all (including, for example, telling parents)	Yes
Should schools enforce pronouns and record children as the opposite sex?	No	No comment
What should schools do about uniform?	Offer flexible options for all	Offer flexible options for all
What should schools do about single-sex changing rooms, showers, toilets?	Have clear rules and consider offering a unisex option	Have clear rules that can be justified
What should schools do about single-sex sports?	Have clear rules and ensure that children who identify as transgender are not excluded or bullied from activities for their own sex	Have clear rules that can be justified
Should single-sex schools exclude children who identify as the opposite gender?	No – they have not changed sex	No
Can single-sex schools have clear single-sex entry criteria?	Yes	Yes (as long as rules can be justified)

Squires recognises that schools are concerned with how all children can be educated in a safe, supportive and respectful environment, but it is notable that the only legal framework he considers is the Equality Act 2010. Schools have other regulations to comply with, with notably the School Premises (England) Regulations 2012 (for state schools) and the Independent School Standards (for independent schools) which both require separate toilets for girls and boys over eight years old. Nor has he considered safeguarding requirements, or (for independent schools) the risk-assessment standard.

Squires mainly concentrates on “trans children”, and makes the central assumption that social transition is in children’s interests. However, social transition is not necessarily good for gender non-conforming children (and certainly the Equality Act cannot tell you if it is). As an experienced clinical psychologist writes for Transgender Trend, “A childhood is not reversible”.

Sex means sex

Squires agrees with us that sex means sex. He states that UK courts have “continued to apply a binary and biological understanding of sex”. Among the cases he cites are Fair Play for Women v Office for National Statistics, AEA v Equality and Human Rights Commission and R (FDJ) v Secretary of State for Justice; now see also For Women Scotland v (1) The Lord Advocate (2) The Scottish Ministers.

He also says that while the Gender Recognition Act 2004 sets out a process by which an individual can change their legal sex, the underlying assumption is that sex is binary and biological, and that a person can only “acquire” a different “sex” as a matter of law if they have a GRC. This is irrelevant to children under the age of 18 who cannot apply for a GRC.

Squires notes that children who identify as transgender (in which he includes non-binary) will have the protected characteristic of “gender reassignment” as broadly defined by the Equality Act – “not because they have have acquired a legal ‘sex’ different from that ascribed to them at birth”.

What the Equality Act says

As Squires notes:

Section 8.5 (1) and (2) provides that a school must not discriminate against a pupil in the arrangements on admission, the terms on which it offers to admit pupils, the way it provides education to pupils, or by subjecting pupils to any other detriment based on protected characteristics including both sex and gender reassignment. Thus, if a school denied a child access to a facility or service, or subjected them to some detriment, because they identified as trans, that would be unlawful.
Section 85(3) provides that a “responsible body must not harass” a pupil or prospective pupil based on the protected characteristic of sex (but not on the protected characteristics of gender reassignment, religion/ belief or sexual orientation).
Schedule 11 permits single-sex schools, expressly stating that the Equality Act’s direct sex discrimination prohibitions will not apply to admission rules for boys-only or girls-only schools).

How should schools accommodate pupils who identify as transgender?

Squires’ advice broadly agrees with the principle which underpins the Sex Matters and Transgender Trend guidance: a child who identifies as transgender should not be treated detrimentally compared with a child who does not; but such a child has not changed sex, and sex-based rules can still be applied.

Issue 1: Can a mixed-sex school refuse to admit or exclude a child because they are trans?

Squires says no – this would be direct gender reassignment discrimination. We agree.

Issue 2: Is a school required, as a matter of law, to treat a child as “being of the gender with which they identify”?

Squires says no. We agree (but disagree that indirect gender reassignment discrimination make this as difficult as Squires suggests).

On the question of not allowing a child to use opposite-sex facilities, wear opposite-sex uniform or play on opposite-sex sports teams, Squires says this is not direct sex discrimination (since the sex-based rule is allowed) but might be indirect gender-reassignment discrimination, because it has a detrimental impact on children with the protected characteristic of gender reassignment. He says this is not necessarily unlawful “if it can be shown by the school to be a proportionate means of achieving a legitimate aim”.

We think that in practice schools could objectively justify that rules regarding the sex of pupils are applied to all, and that safeguarding precludes attempting to keep the sex of a child secret.

We question whether a directly discriminatory rule that is expressly sanctioned by the Act is really intended to also need objective justification in relation to indirect discrimination. In making this argument, as he did in the AEA v EHRC case, Squires moves between real-life scenarios that are not the same. He conflates “excluding trans children from a service or facility of the gender with which they identify” with “being forced to share a communal changing room of their legal sex”.

These are different questions. We argue that it is always proportionate to exclude every child of one sex from facilities provided for children of the opposite sex, but this does not necessarily require forcing them to use communal facilities shared with others of their own sex.

Squires states that ultimately, proportionality will depend on the facts of a particular case. “If, for example, a school has cubicles in a changing area, it may be more difficult to justify refusing to allow a trans girl to use the girls’ changing facilities.” We do not think this is true. If girls and their parents are told that there are female changing rooms, then children of the opposite sex should not be invited in, whether there are cubicles or not.

Furthermore, the cubicle argument does not reflect that schools are communities in which children grow up in a cohort over several years. They may use a wide variety of different changing facilities over the course of those years (and there can be a variety of different children wanting to use opposite-sex facilities). Saying that a particular male child can be treated as if they were female but only in situations where there are cubicles, or at a particular age, is not workable.

Squires states:
“If schools want to avoid the risk of acting unlawfully, l would advise them to review their policies and practices carefully to see which might disproportionately disadvantage trans children, and then consider why those policies or practices are being pursued and whether they are really necessary, or whether different measures could be put in place without compromising others’ rights or interests. I would also advise documenting those consideration.”

We would agree with this, insofar as schools should consider whether their sex-based policies are justified, and whether individual unisex options for children who feel uncomfortable about their sex are also possible.

Schools should also subject any recommendations to adopt radical “trans inclusion” to a similar balancing assessment which recognises why they have sex-based rules and risk assessments in the first place.

Issue 3: Can a girls’ school admit a trans girl, or a boys’ school admit a trans boy? If it does, will it lose its single-sex status?

Squires suggests that a school could if it wanted to use the single-sex exception in Schedule 11 to admit a pupil of the opposite sex as “exceptional” and not lose its single-sex status.

He argues that this exception (typically used for teachers’ children in remote boarding schools) could be used to admit a small number of trans children, saying:
“The trans boys may be legally female, but if they present and identify as male their place in a boys’ school may be less incongruous, and more in keeping with the school’s character and ethos as a boys’ school, than the admission of the teachers’ daughter & thus cannot see why a school should be precluded from admitting trans children on an ‘exceptional’ basis within the meaning of EA 2010 Schedule 11 pars 1(3)(a) while retaining their single-sex status.”

This analysis ignores the reality that a child who identifies as the opposite sex is not, in fact, the opposite sex. The legal question for a school is not only whether it might get away with using the “exceptional” clause in Schedule 11, but also whether it can fulfil its duty of care to all children while pretending that a male child is really female (or vice versa).

Issue 4: Can a girls’ school exclude a trans boy who is a current pupil on the basis that they are a girls’ school and the pupil identifies as male? Or a boys’ school exclude a trans girl who is a current pupil on the basis that they are a boys’ school and the pupil identifies as or female?

No, says Squires. We agree.

Squires says, “Suppose a child at an all-girls school comes to identify, in some or in all aspects of his life, as male. Can the school exclude him (and vice versa with a trans girl at an all-boys school) because the school considers the child’s attendance to be inconsistent with the school being ‘single-sex’? The short answer is no.”

We would agree with this: a girl who identifies as a boy or as non-binary does not in any way cease being a girl.

Issue 5: Can a girls’ school refuse to admit a trans boy on the basis that they are a girls’ school and the pupil identifies as male?

Or a boys’ school refuse to admit a trans girl on the basis that they are a boys’ school and the pupil identifies as female?

Squires says no, and we agree with this.

Issue 6: Can a girls’ school refuse to consider admitting a trans girl on the basis that she is legally male?

Or a boys’ school refuse to consider admitting a trans boy on the basis that he is legally female?

Yes (but it’s complicated), says Squires. We disagree.

Squire asks “If a trans girl applies to a girls’ school could the school nevertheless refuse to consider her application on the basis that she is legally male and the school is an ‘all-girls school?’”

Squires again raises the question of “indirect gender reassignment discrimination” here. He states that the policy or practice of only admitting one sex “almost certainly disproportionately disadvantages trans children”. He states that this is not necessarily unlawful, but the school will need to show that it is “a proportionate means of achieving a legitimate aim”.

We don’t think this stands up, for the same reason it does not stand up for changing rooms and suchlike in a mixed school. A child who identifies as a “trans girl” is not being excluded because they are “legally male” on paper, but because they are male as a matter of fact.

Squires imagines that “it may be that a trans child could be accommodated with little difficulty by the single-sex school of the gender in which they identify”. How this extraordinary cross-sexing of a child would work while respecting and protecting both the child and their peers, he does not explain.

While the difference between the sexes may be relatively easy to ignore at age six, it will quickly become more pronounced as children grow up together in a cohort through puberty.

An extreme and early form of social transition which enforces secrecy about biological facts could in fact disadvantage that child, pushing them along a transition pathway before they are old enough to understand the medical and social implications, and making it harder for them to change their mind.

It is not fair or possible to offer “all girls schools” while also admitting some boys who identify as girls, nor to refuse to tell parents, nor to force the girls to pretend that male children are female.

The idea that schools should collude in trying to keep a child’s sex secret from their peers, and not “outing them”, and the implications of this for safeguarding and consent, are simply not considered by Squires.