The long-awaited guidance from the Department for Education on how schools should respond to children with gender issues in school has been delayed again.
Schools leaders desperately need guidance on setting rules that are feasible, clear and comply with the Equality Act.
The Equality Act 2010 protects people in education from discrimination on both the basis of sex and the basis of gender reassignment, defined in Section 7 of the Equality Act as “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.
A recent case, AA & others v NHS Commissioning Board, confirmed that children may be considered to have this protected characteristic, but suggested that that this would depend on their having made a “settled decision”:
“Not every child referred to the GID service will have the protected characteristic of gender reassignment… They may not, at the time of referral, have taken any settled decision to undergo any part of a process of changing any attribute of sex (to use the language of the 2010 Act). This is particularly likely to be true in the case of very young children.
“But there is no reason of principle why a child could not satisfy the definition in s.7, provided that they have taken a settled decision to adopt some aspect of the identity of the other gender.”
The Attorney General in August 2022 gave a speech setting out a legal position consistent with this: that it remains lawful to continue to treat a child as simply being their biological sex, even if they are covered by the protected characteristic of gender reassignment.
Gillian Keegan, the education secretary, appears to have adopted most of this advice, but has got stuck on the use of “preferred pronouns”, suggesting in a recent interview that schools must allow a child to “change their pronouns” as long as they have parental consent.
What are the legal issues involved?
Let’s approach this from the opposite side and ask whether using sex-based pronouns might be seen as discrimination under the Equality Act.
Is it direct sex discrimination to refuse to call a child who identifies as as “trans boy” he, and continue to refer to the child as she (and a girl)? No. This child is in fact a girl, and it is not direct sex discrimination to call a girl “she”.
Is it direct gender-reassignment discrimination? No. Direct gender-reassignment discrimination would mean treating the child differently (and detrimentally) because of this characteristic.
It might be argued that if people without the protected characteristic of gender reassignment are referred to by the “correct” pronouns, then people with the protected characteristic of gender reassignment have the right to be treated equally and it is therefore detrimental to call them by the “wrong” pronoun. But this falls down because “preferred pronouns” are “correct” only if you accept that pronouns refer to people’s gender identity, not their sex.
Could it be indirect gender-reassignment discrimination? Indirect discrimination is when there’s a policy, criterion or practice (PCP) which applies to everyone in the same way, but it has a worse effect on some people than others. It might be argued that referring to people using sex-based pronouns is a “policy, criterion or practice” that puts a trans-identifying child at a disadvantage as it upsets them and makes them feel dysphoric.
The first defence against this is that calling female people “she” and male people “he” is not in fact a PCP (that is, a rule imposed by the school), but rather people speaking natural English without interference. Even if it was a rule that sex-based language were always to be used in the classroom and by staff, it would be justifiable (and therefore not unlawful), as there are several good reasons why schools refer to pupils using sex-based pronouns and other clear sex-based words:
- The sex of every child is known (and recorded on the roll): it is not a question of guesswork or perception.
- Talking about people according to their sex is justified when setting and enforcing sex-based school rules, such as who can use which toilets, changing-rooms or dormitories.
- It is essential to use sex-based language when it comes to safeguarding – and all education professionals have statutory safeguarding duties. In order to carry out proper risk assessment and safeguard all children, it is necessary that all children are correctly recorded and referred to as their actual sex.
Also, any attempt to impose non-sex-based speech rules impinges on other people’s rights:
- Religion or belief is a protected characteristic and schools cannot impose gender-ideology beliefs on children.
- Disability is a protected characteristic and some children have conditions such as autism or learning difficulties that make it difficult or impossible for them to understand, still less adhere to, non-intuitive speech rules such as referring to certain boys as “she/her” or using neopronouns or no pronouns at all.
Can we let some children choose their pronouns?
Suppose, despite all this, a school or the Department for Education attempts to write down a rule allowing some children to “change pronouns”. This would mean creating a PCP where none previously existed.
But if that PCP involves compelling others to use preferred pronouns, it would have to be balanced against the freedom of belief and speech of others, and the school’s statutory safeguarding duties. Enforcing pronouns with punishment for teachers and pupils who “misgender” would impinge on their rights.
Parental consent as a factor would not swing this balance. Parental consent does not determine whether a child has the protected characteristic of gender reassignment. Nor does it mitigate the impacts on other children’s rights of enforcing preferred pronouns.
Allowing children to access the pronoun regime only if their parents consent would encourage them to argue endlessly with their parents, trying to wear them down and using the type of emotional blackmail promoted by trans lobby groups, such as threats of suicide.
A policy that differentiated between children whose parents consented and those whose parents did not would also be vulnerable to legal challenge, perhaps in a test case of a looked-after child or a child with non-consenting parents, or parents who disagreed with each other, and perhaps with the support of a trans lobby group.
The school or DfE might say that using a child’s preferred pronouns is entirely voluntary. But this brings us back to where we started, without any PCP about pronouns.
These questions tend to be framed as “just about pronouns”. But the people who think it’s “misgendering” to call a boy who wants to be a girl he/him also think it’s misgendering to call him a boy, or male. So the call to impose “preferred pronouns” is really an attempt to make it impossible to refer to someone’s sex if they don’t want you to. A requirement to use preferred pronouns is actually an injunction against reality-based language.
It is hard to see how a school can enforce sex-based rules and expectations – which the Education Secretary appears to accept is the only lawful option – if it is not allowed to use clear-sex based language. The only lawful and feasible policy is to say that a child can change their name (since this is something all children can do), and can wear whatever clothes and hairstyles are allowed at school (which may or may not involve sex-based rules). They cannot demand to be referred to as if they were the opposite sex or use opposite-sex facilities.