Mermaids’ letter shows what the DfE needs to do to make its guidance work for schools

In December 2023, the Department for Education released draft guidance on gender-questioning children for schools and colleges in England. The consultation on this guidance is open until 12th March. 

The guidance tells schools and colleges that they can and should say “no” to demands to:

  • refer to a girl as a boy, or a boy as a girl
  • refer to a girl as “he”, or a boy as “she”
  • allow a child to play in opposite-sex sports
  • allow a child to use opposite-sex toilets and changing-rooms
  • allow a child to wear opposite-sex uniform
  • admit a boy to an all-girls’ school or a girl to an all-boys’ school.

The guidance is quite long, and is less sharp, clear and simple than these bullet points. But this is what it boils down to. 

However, it also tells schools that there may be rare exceptions to these rules, and to go through an individualised decision-making process when a child requests to be treated as an exception. It envisages this involving a complex list of factors, such as how long the child has been making the request, the school’s safeguarding obligations, the age of the child, the views of the parents, clinical information, the long-term impact on the child and the long-term impact on other pupils. 

This is unworkable and places extra workload on overstretched staff. It also makes schools vulnerable to confusion, distraction, pressure and threats of legal action.

Trans lobby group Mermaids has produced a template letter for parents who want to challenge a decision by a school. The letter was prepared by a firm of solicitors and is fairly straightforward. It sets out that:

  • a child has made a request which has been denied
  • the parents say that failing to accede to the child’s wishes raises welfare concerns
  • the school has statutory responsibilities under the Equality Act and for safeguarding.

The letter states that the circumstance of the individual child must be considered and asks for the school to provide:

  1. full reasons, including how the decision safeguards and promotes the welfare of this child
  1. copies of the guidance and internal policies that were relied on. 

The underlying message of the letter is that the school is in danger of committing unlawful discrimination against the child. 

The way a school should respond to this (or head it off in the first place) is to have a written whole-school policy that explains where and why they treat girls and boys differently, and makes clear that “girl” means female pupil and “boy” means male pupil. The policy should be based on the recognition that schools have responsibilities concerning discrimination and safeguarding in relation to all their pupils. And they need rules that work to protect all pupils and enable the smooth running of the school.

The policy should set out the areas where they have rules, routines and policies that relate to sex, for example that the school:

  • registers each pupil’s sex on admission
  • always records and refers to their sex accurately and considers risk factors in relation to their sex
  • provides separate provision for girls and boys in some situations (e.g. sport, changing, toilets)
  • has a uniform policy, and whether it has different rules for girls and boys in some aspects.

In each case, the policy can set out the reason for the rule.

This would make clear that what the child and their parents are requesting is to be treated as an exception to a rule.

The school can then say no with confidence: we do not allow girls to play under-13s rugby with the boys because it would be unsafe. The school does not have to consider whether it is unsafe for each individual girl to play under-13s rugby with the boys (even a girl who identifies as a “trans boy”). And if it is unsafe for under-13s, it is more unsafe for under-14s, and even more unsafe for under-16s.

Wherever the school sets rules and routines that differentiate between girls and boys, it should consider whether the rule itself is detrimental to either sex (direct sex discrimination), not whether to apply it to each individual child. For example, a policy that gives boys more opportunities overall to play sports would be sex discrimination. This is not fixed by treating some girls as exceptions, allowing them to play sports with the boys.

If a rule is fair, then enforcing it is fair. And enforcing rules fairly is part of the school’s behaviour policy. 

If the child or parents want to mount a legal challenge to their child being subject to the same rule as other boys or girls, they might argue that the rule itself is indirect discrimination based on “gender reassignment”. 

Indirect discrimination happens when there is a practice, policy or rule that applies to everyone in the same way, but it has a worse effect on groups of people who share a protected characteristic. The law provides that if the rule is justified as “a proportionate means of achieving a legitimate aim”, then it is not unlawful. So if the school has a clear policy it can respond to requests by simply pointing to the explanation for why the rule is justified. 

The school can also explain that the reason it uses clear sex-based language for every child is so that all children understand the rules and behaviours expected of them, which are designed to keep all the pupils safe and treat them fairly.

While different schools may have somewhat different rules and policies (they offer a different mix of sports, they have different uniform rules and so on), the basic shape of a policy which explains why the school has sex-based rules and record-keeping can be common across all schools. 

The DfE should publish a model policy which simplifies its guide down to something operational that schools can adopt. This can be supported by an equality impact assessment. It would not need to involve any consideration of sensitive information concerning any individual child.

If Mermaids wants to challenge this policy, the DfE can defend it.

The DfE’s backing would give individual schools the confidence to adopt the policy.

What the DfE should not do is to leave it to individual school headteachers to battle with Mermaids, and with distraught or activist parents who have been encouraged to have unrealistic expectations by Mermaids or other lobby groups.