Lobby groups tell schools to ignore DfE guidance

The Department for Education’s guidance on gender-questioning children was published in December – but many schools are getting materials from organisations they think are trustworthy telling them to ignore it. 

Below is a summary of what the larger organisations are sending out. Since “The Key” alone reaches more than half of all schools and trusts, most schools will have been advised to go against government guidance. 

We are also starting to hear from teachers, governors and parents that when they bring the draft guidance up, the response is that the guidance is “unlawful” and the school does not intend to follow it. We have also heard of pupils being told that it is “the new Section 28” and they must respond to the consultation to try to get it stopped.

Stonewall: “not fit for purpose”

Stonewall argues without any detail that the guidance is “legally unworkable and contrary to existing equality law and the government’s own guidance on safeguarding – it is actively dangerous.” 

Stonewall says: 

“It flies in the face of the UN Convention Rights of the Child and the Equality Act 2010, suggesting that trans children are not worthy of respect or protection from harassment, and as such treats them as an inherent risk to other children and as a threat that is to be contained. Exclusion is its starting point, and it actively looks to find ways to legitimise bullying and social exclusion of trans children and young people.”

Mermaids: “upsetting and scary”

Mermaids is a charity that supports “trans, non-binary and gender-diverse children, young people and their families”.

It has published an “explainer” on the draft schools guidance. This says: 

“These proposals are upsetting and scary for our community, particularly those with lived experience of transphobia in school. Please take care when reading…

“At no point does the guidance offer any advice on how to include and support trans young people – its sole focus looks to be making schools hostile and exclusionary for trans students…

“Many legal experts, including the Department for Education’s own lawyers, believe that the guidance may be illegal…

“the draft guidance imposes additional barriers to trans pupils to be their authentic selves at school…

“Schools that follow this guidance may be at risk of legal challenge – deliberate misgendering may be considered unlawful discrimination, while disclosing a person’s trans status without permission may violate their right to privacy. We find it concerning that the Government has prioritised its anti-trans agenda over offering schools legally-rigorous, supportive guidance…

“It is typical of the Government’s approach that the guidance provides no advice on how to support and include trans young people in schools, with its sole focus on justifications to exclude and even humiliate trans students…“

Mermaids tells parents to write to their MPs, saying that the draft trans guidance seeks to prevent trans young people from having an “accepting and supportive school environment to learn and be their authentic selves”. It describes the guidance as “unworkable, out of touch and absurd”, and says it will “create further confusion for teachers and put young people at risk”. It has also produced produced a form letter drafted by a firm of solicitors for parents to use to challenge any refusal by a school to treat their child as a member of the opposite sex, or as not having a sex.

Just Like Us: “We recommend schools do not implement this draft, non-statutory guidance”

Just Like Us, a charity that “supports LGBT+ young people” has also produced a response.

“We recommend schools do not implement this draft, non-statutory guidance. We encourage teachers to stand for inclusion, not exclusion…

“Aside from alienating trans and gender diverse children from education, the draft guidance is unclear, impractical and many questions have been raised over its legal standing…

“We hope that, with clear evidence, the Government will produce a revised draft that genuinely meets its previously stated aim that: ‘all LGBT people should feel welcomed and safe at school, college and university so that they can reach their full potential’.”

Trans and non-binary education: “openly transphobic”

Trans and non-binary education is a volunteer group of trans and non-binary educators that has been up and running for a decade. It  has produced short and long versions of its analysis of the guidance. 

The short version starts:

Key Points

• The guidance is not law
• The guidance is openly transphobic
• The guidance is misleading, inaccurate, and incomplete
• The guidance is unlawful and puts children at risk
• Schools, colleges, and/or staff that follow the guidance are at risk of action by regulators (such as Ofsted and the Teaching Regulation Agency) and/or legal action.

TransLucent: “should be torn up, thrown away and a fresh start made”

TransLucent (a trans lobby group) has published an analysis by trans barrister Robin Moira White.

White’s article on TransLucent says:

“The present government have apparently allowed the party political desire to engage in a culture war to take precedence over giving useful guidance to schools on how to accommodate trans children.

“The draft GQCG is fundamentally flawed and should be torn up, thrown away, and a fresh start made.

“If followed, the GQCG would, in my opinion, be likely to lead to educational institutions acting unlawfully towards trans students in a number of respects and not in their best interests.

“Whether the act of issuing the GQCG in its present form is itself unlawful is a public law question. It seems likely that the relevant Ministers (Keegan and Badenoch) have issued guidance which they know, or have been advised, is likely to lead to schools acting unlawfully. At the very least, on a moral level that seems extraordinary and reprehensible.”

The Key: make your own rules

All of these are trans lobby groups. Perhaps even more worrying is the guidance circulated by “The Key”, which is a commercial provider of support to schools. More than half of all UK schools receive its briefings.

The Key’s recent briefing on the draft schools guidance is online but behind a paywall.

• The Key emphasises that the guidance is in draft form, and says schools don’t need to do anything until the government has made whatever legal changes it needs to. It says its guidance is legally accurate as of now. 
• It tells schools that they need to consider what their trans and non-binary students need, and to make sure that they are not distressed by the publication of the guidance. It says that these students have the legal right to use whichever single-sex facilities they choose. 
• The Key says that no one should be notified of a child’s trans status unless the child agrees (it doesn’t acknowledge any exception for parents).

There is no acknowledgement that the guidance, though currently in draft form and planned to be non-statutory, is based on a legal analysis and cites other legislation that is binding on schools.

What all this reveals is a widespread determination to simply ignore the DfE guidance and continue with Stonewall Law. 

These organisations trying to scare schools with threats of legal action and accusations of “transphobia” if they follow the government’s guidance highlight the need for the DfE to make the guidance as clear and confident as possible. We are calling on the DfE to produce a model policy that schools can adopt, backed up by assurance that the DfE would defend the policy in any legal challenge.