Department for Education guidance on “gender questioning children”: call for responses

The Department for Education (DfE) is inviting responses to its long awaited draft non-statutory guidance for schools and colleges in England on “gender questioning children”. It states that the term transgender is not being used to describe children because under English law, children cannot obtain a Gender Recognition Certificate and therefore cannot change their legal sex prior to becoming an adult (over 18 years old).

This follows the publication of the Equality and Human Rights Commission’s guidance (EHRC) for schools in England and in Scotland in the Autumn. The EHRC notes that a child can have the protected characteristic of gender reassignment, but has removed the indication in previous guidance that not using a pupil’s preferred name and pronouns (known as “social transition”) would amount to direct discrimination. The EHRC guidance also states that schools must provide single sex toilets and changing rooms.

The DfE draft guidance goes further. It addresses a number of practical matters, including:

Notifying parents:

• “If a child requests a change, schools and colleges should make parents aware of the situation” except in “the very rare situation where informing parents might raise a significant risk of harm to the child.”

Single sex facilities:

• “All children should use the toilets, showers and changing facilities designated for their biological sex unless it will cause distress for them to do so. In these instances, schools and colleges should seek to find alternative arrangements, while continuing to ensure spaces are single-sex.”

Uniforms:

• “A child who is gender questioning should, in general, be held to the same uniform standards as other children of their sex.”

Sports:

• Schools and colleges should consider the age of the child and how safe and fair it would be to allow mixed-sex participation: “For most children above a certain age, this will usually require offering female-only sporting activities and competition.”

Pronouns:

• “Schools do not have to accept a child’s request to socially transition”, on the basis that “this is not a neutral act.”
• “Primary school aged children should not have different pronouns to their sex-based pronouns used about them.”
• In relation to older children, “it is expected that there will be very few occasions in which a school or college will be able to agree to a change of pronouns. On these rare occasions, no teacher or pupil should be compelled to use these preferred pronouns.”

Name change:

• Where it is decided by the parents and school or college that it is in the best interests of a child to be known by their informal name (i.e. not their legal name) then the “new name should be communicated to the school or college community.”

Informing other pupils and staff generally:

• “If and where any change has been agreed, the school or college should communicate this to other pupils and staff where it is necessary and proportionate to do so. This should be done sensitively, without implying contested views around gender identity are fact.”

Mindy Jhittay, an Equality law specialist in our Dispute Resolution team, comments: “The guidance, which covers areas that are untested in the courts, expresses concern about the impact of these important matters on children and young people. We expect that various organisations and individuals, including schools and colleges, teachers and leaders, parents and young people, charities and support groups, will have valuable experience and views. We encourage you to respond to the consultation on the content of the guidance and whether it will help to support considered and lawful decisions in relation to children and young people. It is open until 12 March at Gender questioning children: draft schools and colleges guidance – GOV.UK (www.gov.uk).”