Gender questioning children guidance: where are we now?

We previously wrote about the potential impact of the judgement in the case 'For Women (Scotland)'. The draft KCSIE issued in July indicated that a link to the new gender guidance would be found in the finalised KCSIE of September 2025 but this reference was deleted in view of further delays in the reporting to the Minister by the Equality and Human Rights Commission (EHCR). 

Over the summer the DfE issued updated RSHE statutory guidance (coming into force in Sept 2026) which: teaches legal facts about biological sex and gender reassignment as a protected characteristic; avoids teaching any particular view of 'gender identity' as fact; and encourages careful handling of sensitive content. However, a separate, dedicated document on gender-questioning pupils is still due. 

As we wrote earlier in the year, the Equality Act protections against discrimination in school on the grounds of gender reassignment remain intact. As a reminder, the EHRC define 'gender reassignment' as:

• “Gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign a person’s sex.
• To be protected from gender reassignment discrimination, a person does not need to have undergone any medical treatment or surgery to change from their birth sex to their preferred gender.
• A person can be at any stage in the transition process, from proposing to reassign sex, undergoing a process of reassignment, or having completed it. It does not matter whether or not a person has applied for or obtained a Gender Recognition Certificate, which is the legal document that enables trans people aged 18 and over to have their acquired gender recognised as their legal sex.
• A child can have the protected characteristic of gender reassignment.”

The new 2025 KCSIE (paragraphs 207-208) advises:

• "As such, when supporting a gender questioning child, schools should take a cautious approach and consider the broad range of their individual needs, in partnership with the child’s parents (other than in the exceptionally rare circumstances where involving parents would constitute a significant risk of harm to the child), including any clinical advice that is available and how to address wider vulnerabilities such as the risk of bullying.
• Risks can be compounded where children lack trusted adults with whom they can be open. It is therefore vital that staff endeavour to reduce the additional barriers faced and create a culture where they can speak out or share their concerns with members of staff.”

The ECHR Technical Guidance for Schools continues to be an important guiding document for schools when understanding their duties under the Equality Act. The Technical Guidance does not explicitly separate out a 'gender' section in its table of contents. Instead, it integrates content relating to sex and gender reassignment throughout the document, making it hard for educators to navigate this sensitive area.

What to expect in the forthcoming DfE guidance

While we won’t know final wording until publication, ministerial statements, KCSIE signposting and RSHE changes point to:

1. A cautious, case-by-case safeguarding approach:
   Expect explicit direction that requests (names, pronouns, facilities, sports, records) must be considered individually, led by safeguarding risk assessment and welfare—not automatic 'affirmation' or blanket rules.
2. Clearer alignment with law after recent court judgment:
   Anticipate stronger emphasis that schools must apply the Equality Act 2010 as currently interpreted (including single-sex exceptions) and pay regard to the EHRC’s materials—especially for toilets/changing and residential trips.
3. Parental engagement by default (with safeguarding carve-outs):
   The RSHE update and prior DfE lines suggest a continued parent-first expectation unless there’s a credible safeguarding reason not to inform. Look for clearer thresholds and recording duties.
4. Pronouns and names: careful thresholds and review points:
   Likely guidance to differentiate informal name use from record changes, set age-appropriate thresholds, require parental involvement where safe, and mandate periodic reviews tied to pastoral and attendance data.
5. Facilities, PE and residentials: 
   Expect clearer defaults for sex-separated spaces and participation, alongside reasonable adjustments / alternatives (e.g., supervised or single-user facilities) arrived at via documented risk assessment and consultation.
6. Record-keeping and governance:
   Anticipate explicit requirements to log decisions, reasons, reviews, and parental communications; to assign senior oversight; and to show how cases feed into safeguarding and attendance/behaviour monitoring.

What schools can do now (practical steps before the DfE guidance lands)

• Map your decision points: names/pronouns; MIS and exam entries; toilets/changing; residentials; sports; uniform; single-user alternatives; communication plans. Tie each to a written risk-assessment template. This will make adopting the final guidance largely administrative rather than structural.
• Update policies to reference RSHE 2025 and KCSIE 2025 (teaching legal facts; not presenting a belief about gender identity as fact) and note that dedicated gender-questioning guidance is pending. Train RSHE leads accordingly.
• Reinforce your parental-engagement pathway (with safeguarding exceptions) and create standard letters/notes for consultations and review meetings.
• Review single-sex facilities and reasonable adjustments: ensure a baseline of sex-separated toilets/changing and identify supervised/single-user alternatives you can deploy case by case. Keep a paper trail of rationale.
• Brief governors/trustees: set oversight, reporting cycles and a readiness plan so you can incorporate the DfE document when it is issued (KCSIE will signpost to it).

How can we help?

Our equality law experts regularly advise on all gender-related matters including in the context of complaints, claims in the county court and disability discrimination. VWV has also reviewed its policy suite to ensure compliance with evolving guidance and law in equality. 

For more information, please contact Miriam Carrion-Benitez in our Academies and Maintained Schools team on 0207 665 0802 or at mbenitez@vwv.co.uk.