What Hilary Cass needs to tell schools: social transition is incompatible with safeguarding

On 28th July Dr Hilary Cass, the eminent paediatrician commissioned by the government to review paediatric gender-identity provision in the NHS, made an announcement that vindicated everyone who has criticised that provision, often at considerable personal cost. The Gender Identity Development Service (GIDS), England’s sole NHS clinic for under-18s experiencing gender dysphoria, is to be shut down by January 2023. GIDS was “not a safe or viable long-term option”, Dr Cass said.

The evidence base on which it prescribed major hormonal interventions such as puberty blockers was close to non-existent, and many clinicians had expressed concerns about poor diagnosis and record-keeping, and a culture of shutting down criticism.

In its place two new centres will be set up, run by specialist children’s hospitals in London and the north-west. These will oversee a comprehensive research programme, likely to be the first anywhere in the world to compare alternative treatment pathways and keep track of former patients into adulthood. The plans hold out hope that poorly researched experimental drug treatments that have been used on children since the 1990s, and by the NHS for a decade, will finally be properly assessed for safety and effectiveness.

Dr Cass’s interim report, published earlier this year, was already heartening. She rejected the ideological label of “trans children”, which suggests a well-defined category delineated by some objective characteristic, and wrote instead of “gender-distressed and gender-questioning children” – young people who may be going through a difficult developmental stage and are likely to be harmed if a potentially transient personal identification is treated as stable and permanent. She observed that “social transition” is not a neutral act but a major psychosocial intervention that may affect whether a child’s gender distress disappears or becomes long-lasting. And she was able to persuade the Department of Health to amend the Gender Recognition Act so that the research she proposes will track former patients who have been lost to follow-up through a change of NHS number.

Final report due in 2023

But there is still much to hope for from her final report, which is due to be published in 2023. Top of Sex Matters’ wish list is a clear recognition that schools are at least as important as health services in halting trans social contagion among children, and for Dr Cass’s recommendations to take this into account.

In February we commissioned a YouGov poll of secondary-school teachers. It confirmed that a large majority had at least one trans-identified or non-binary child in their school, and most said that the number was higher than three years ago. Many schools are facilitating social transition, often without even informing parents. Some are going beyond supporting changes of name and preferred pronoun, and allowing children of one sex to use facilities intended for the opposite sex and to play single-sex sports with the opposite sex.

Sex Matters was set up by a group of lawyers and researchers who were concerned about the confusion and misrepresentation of the law around sex and “gender reassignment”. This was (and is) used to undermine women’s rights, to attack freedom of expression and belief, and to create a culture of fear around research and debate on the phenomenon of transgenderism, particularly the recent rise in paediatric transition. 

We are not clinicians or medical researchers. But the extent to which “rights talk” shapes the narrative around trans-identifying children should not be underestimated. Our expertise in equality law – which has been misused to push the promotion of social transition in schools – means we are well placed to help clinicians, medical researchers, educators, parents and others talk more freely about what is driving the rise in paediatric transition, and how to respond. 

How the Equality Act accidentally created “transgender children”

“Gender reassignment” (also termed being “transsexual”) was introduced as a protected characteristic to the Sex Discrimination Act in 1999, following P v S & Cornwall County Council, a case that went to the European Court.

The employer was found to have discriminated when it terminated a man’s employment after he stated his intention to transition. The law developed in response provided protection against employment discrimination for anyone undergoing, or having undergone, “gender reassignment”. This was defined as “a process which is undertaken under medical supervision for the purpose of reassigning a person’s sex by changing physiological or other characteristics of sex, and includes any part of such a process”. It applied to employment and vocational training, and thus in practice applied only to adults (or at least to over-16s).

This protected characteristic was never meant to require that the transitioner be treated as if they really were of the opposite sex, or that other people be forced to share intimate spaces with them to validate their sense of gender. What was intended was that the person shouldn’t lose their job, and that reasonable accommodations should be made at work.

However, the original formulation of “gender reassignment” was linked to medical supervision. Traditionally, clinicians focus only on the patient in front of them. This has often led to neglect of the societal impact of transition, and disregard of other people’s rights.

Since the 1980s gender doctors have advised, and sometimes even required, gender-dysphoric patients to use facilities reserved for the opposite sex before granting them access to cross-sex hormones or genital surgery: the so-called “real-life test”. Clinicians have done this with no consideration for the way in which this has led patients to intrude on other people’s safety, privacy and dignity in single-sex spaces, which in this country are expressly recognised in law.

In 2003 this tension between a staff member whose doctor encouraged them to use opposite-sex facilities and an employer who had responsibility towards other staff members’ privacy and dignity was tested in Croft v Royal Mail (a case concerning a transitioning male employee who wished to use the ladies’ toilets). The judgment, based on the protected characteristic of gender reassignment, was that Royal Mail was justified in saying “no” for some time. But this “no” could not be indefinite, and at some unspecified point in the future the male employee would need to be allowed to use the women’s toilet (the judges were clearly kicking the can down the road, expecting that the Gender Recognition Act would identify this moment).

In 2004 the Gender Recognition Act was passed. But in the event, it was silent on whether a gender recognition certificate (GRC) bestowed the right to use opposite-sex facilities.

In 2010 sex and gender reassignment were tidied up into the Equality Act, alongside race, disability, age and other protected characteristics. At this point, protection against gender-reassignment discrimination was expanded from employment to other relationships covered by the Equality Act – including service provision, education and associations.

It was thus, in effect, expanded from adults to children. This was not done (as far as we have seen) with any discussion of the significance of this expansion, or of what it might mean for a child to be considered transsexual, or of the age at which a child could meaningfully decide to transition, and what that might involve.

At the time it would have been thought that there was a tiny number of such children, all of them experiencing severe gender issues, and all undergoing long-term and intensive medical assessment. Very few schools would ever have seen a “trans child”: there were just 72 referrals to the Tavistock GIDS clinic that year.

Another change to the protected characteristic of gender reassignment in the transfer to the Equality Act was the removal of the requirement to be under medical supervision.

These two unconnected shifts – expanding discrimination coverage beyond employment, and removing the medical requirement – meant that the Equality Act created the legal category of the self-identifying “transgender child” (child with the protected characteristic of gender reassignment). This happened with no clinical or legislative attention or oversight.

At the time, it was understood that the protection against discrimination was just that: a person with this characteristic (or who was perceived to have this characteristic) should not be excluded from work, school, university, restaurants, transport, financial services and so on because of the characteristic. It did not intend that they must be treated as the opposite sex. And the Equality Act included clear exceptions to allow for single-sex facilities and services.

Guidance that goes beyond the law

In 2012 the Intercom Trust (a regional LGBT lobby group), Cornwall Council, and Devon and Cornwall Police published their first version of an influential guide to “transgender children” in schools. It encouraged schools to adopt the concept of the transgender child, and to socially transition children, in order to comply with its own interpretation of the Equality Act.

The guide stated that gender-reassignment discrimination was an asymmetric protection, whereby only trans children were protected against discrimination. It claimed that schools were “therefore free to take special steps to meet the needs of Trans pupils without being accused of discriminating against pupils who are not Trans”.

This view of the law is inaccurate, since special steps taken to meet the demands of children identifying as trans could result in direct or indirect belief or sex discrimination against other children. Furthermore, schools always need to consider their duty of care to all children before considering special steps (such as lying about a child’s sex) which impact others.

This was continued in 2014, in guidance for schools on the Equality Act issued by the Department for Education. This also referred to the Intercom Trust, as well as the Gender Identity Research and Education Society (GIRES), an influential lobbying charity. Guidance for schools from the EHRC also refers to GIRES and uses an example from the organisation, saying that it would be direct discrimination not to use a child’s preferred pronouns. Technical guidance from the EHRC produced in 2014 said it would be inappropriate for a male “transsexual pupil” to be required to use the boys’ changing room. Other guides since then have taken similar approaches.

None of this was based on clinical considerations. Rather, it was all based on a mechanical (and we think erroneous) reading of the Equality Act encouraged by “trans rights” organisations. All of this guidance simply assumed that because gender reassignment relates to a person “living in the other gender”, schools must accommodate a child as if they actually were the opposite sex.

All this undermined the protection of children in several ways:

• encouraging the transitioned child to use facilities reserved for the opposite sex, thereby breaching other pupils’ rights to bodily privacy and dignity
• undermining safeguarding, in respect of both the transitioned child and his or her fellow pupils
• giving weight to ideological, unscientific teaching materials that misrepresent the binary, immutable reality of sex and reify gender stereotypes
• encouraging social contagion – a child who sees trans-identified classmates gain privileges, whether that is to do with social cachet, access to the opposite sex’s spaces or permission to wear the opposite sex’s uniform, may be encouraged to think of transitioning themselves.

From 2017 to 2019 this approach reached its apogee as the EHRC (under its former leadership) developed schools guidance in association with Mermaids and Gendered Intelligence. This guidance promoted extreme social transition, with the trans-identified child’s sex kept secret from classmates and some teachers, and no consideration whatsoever of other children’s rights. The draft was leaked, publicly criticised and never formally published.

In the meantime, whole-school teaching has also encouraged confusion and misunderstanding of the Equality Act’s protected characteristics. These misrepresentations were used as a vehicle for introducing ideas of non-material gender to children too young to evaluate them critically. Much of the development of these teaching materials was funded by the Department for Education, under budgets for tackling “homophobic, biphobic and transgender bullying”.

Social transition at school is not compatible with safeguarding

We do not believe that the Equality Act requires this treatment of gender-distressed children. We have published our own guidance, which sets out a much more cautious approach and is, we argue, in line with the Equality Act.

Supporting full social transitioning in schools is incompatible with child safeguarding and the duty of care that schools have for all their pupils. Schools are not clinics, and teachers are not mental-health professionals: it is not appropriate for them to be overseeing a psychosocial intervention with such potentially grave consequences.

Many aspects of social transition pose serious safeguarding risks to the trans-identified child. Breast-binding, for example, can cause permanent harm. A socially transitioned pre-pubescent child will naturally fear the coming of what is now framed the “wrong” puberty, and will be more likely to demand puberty blockers.

Social transitioning also poses safeguarding risks to other children, and undermines their rights. Official regulations oblige all schools to provide single-sex toilet facilities for children aged eight and above, and to ensure that changing facilities for children aged 11 and above are single-sex. This is necessary for children’s privacy, dignity and safety. But many schools are now in breach of these regulations, having been misled by lobbyists into thinking that the protected characteristic of gender reassignment requires them to allow trans-identified children to use the facilities of the opposite sex.

Risk assessment and management require honesty about sex. It is entirely inappropriate to have anyone in a school whose sex is either concealed from others or deemed unmentionable. Sex-separated toilets and changing rooms are a fundamental safeguarding measure, and no child should be allowed, let alone encouraged, to step outside rules intended to keep everyone safe. Schools are supposed to teach their pupils about consent, and this is impossible if some children are encouraged to breach other children’s boundaries in this way.

We argue that schools have much more limited obligations under the Equality Act to ensure that children with gender distress or trans-identifying children are not excluded from education (without over-emphasising this characteristic; there are many children with particular needs). They may be able to take generalised steps to ease distress without marking such children out as “special”. Such steps might include unisex uniform options that any child can wear, and (single-user) unisex alternative toilets which can be used by any child who doesn’t feel comfortable in facilities for their own sex. Children may be allowed to change their name (since all children can), but the school must not pretend they have changed their sex.

We hope that guidance forthcoming from the Department for Education will stop the over-interpretation of the Equality Act as requiring social transition. But this view is already strongly embedded in schools (and teaching unions), and so will take time and determined effort to roll back.

What this means for Dr Cass’s final recommendations

The Equality Act will be a key part of the environment into which these emerge (and for any steps the NHS takes in response). Its use and misuse are therefore a risk and challenge to her work.

The recommendations should of course be driven by clinical findings. But they must also be robust to legal challenges in relation to the Equality Act, and mindful of the way the Equality Act may be misused to undermine them in practice.

We would like to highlight a specific potential hostage to fortune. It might be superficially appealing to seek to curb social contagion by recommending that social transition in schools be restricted to children with long-standing identity issues and a diagnosis of gender dysphoria, and to require it to be carried out under a doctor’s supervision. However, any special measures permitted for such children are likely to be demanded by others without a diagnosis. And since the protected characteristic of gender reassignment does not require a diagnosis, any such recommendation would be vulnerable to challenge.

A better approach would be to recognise that the problems posed to schools by social transition are so serious that schools would be justified in simply saying “no” to those elements of social transition that hamper safeguarding and harm other pupils’ rights. (No child of one sex can use toilets or changing-rooms for the other sex; no boy can play girl-only sports; and so on.)

Doctors, rightly, focus on their patients, and Dr Cass’s primary concern is rightly the support and treatment of children with gender distress. But her final recommendations will also have a profound impact on other children, and on the way schools are run. Too narrow a focus on the trans-identified child risks missing a bigger picture: the way social transition in school inevitably leads to all children’s rights being infringed.