Updated guidance for schools under the Equality Act regarding pupils with protected characteristics

The Equality and Human Rights Commission has updated its technical guidance for schools on their obligations under the Equality Act 2010 in England and Scotland. The updates have been made to ensure that guidance on the protected characteristic of sex and gender reassignment reflects developments in this area of policy and law.

Background

The guidance was originally published in 2014 and has been reviewed to reflect developments in law and policy. The most recent version was published on 22 September 2023.

The technical guidance is not a statutory Code of Practice but can be used as evidence in legal proceedings. Any body subject to the equality duty that does not follow the guidance will need to justify why it has not done so.

What are the updates?

Of the updates made to the technical guidance, a section has been included on the use of names and pronouns; an example with respect to sex segregation in schools has been amended in line with regulations on school toilets; and updated definitions of sex and gender reassignment have been included. These updates are largely uncontroversial and reflect pre-existing law and policy.

What are the next steps?

Following the updated Commission guidance, the Department for Education will issue long-awaited operational guidance to schools on supporting transgender students. Rachel de Souza, Children’s Commissioner, has emphasised the importance of prioritising this guidance which has been subject to lengthy delays. On the other hand, in a ministerial statement published in July 2023, Education Secretary Gillian Keegan said ministers need more information about “the long-term implications on a child to act as though they are the opposite sex” before any such guidance is published.

The operational guidance is being drawn up by Gillian Keegan and the Business Secretary Kemi Badenoch, who has a second role as Women and Equalities minister. One draft reportedly set out that pupils be allowed to socially transition (the process by which transgender people adopt a name, pronouns and gender expression, such as school uniform, in keeping with their chosen gender identity) with parental consent. However, other ministers are reportedly pushing for a tougher stance despite legal advice that an outright ban on social transitioning in schools could be challenged as unlawful under the Equality Act 2010, which recognises gender reassignment as a protected characteristic.

In the vacuum left by the ongoing delays to the operational guidance, the NHS has released an online module for people working in the education sector. It takes a cautious approach with an emphasis on parental consent, following an interim report from the Independent Review of Gender and Identity Services (by Dr Hilary Cass) which set out that social transition is not a neutral act and better information is needed about outcomes and the role of educators in this area. It remains to be seen how the government will approach the final draft; however any further delay dilutes the hope of a uniform approach to supporting public authorities, educators, students, and parents navigating the realities of sex and gender reassignment and its intersection with other protected characteristics.

The Department of Education guidance will go out to consultation before any final version is issued.