Gender Questioning Guidance - what does this mean for schools?

Status

The guidance is non statutory. It is also only draft guidance at this stage and is subject to a public consultation ending on the 12 March 2024.  Schools with any concerns over the guidance can take the opportunity to respond to the consultation and have their say before the final guidance is published.

What does the guidance say?

Relevant staff should read the guidance in full for themselves, but in essence it is based around 5 principles, summarised as follows:

• Schools and colleges have statutory duties to safeguard and promote the welfare of all children
• Schools and colleges should be respectful and tolerant places where bullying is never tolerated
• Parents should not be excluded from decisions taken by a school or college relating to requests for a child to ‘socially transition'
• Schools and colleges have specific legal duties that are framed by a child’s biological sex. Children’s legal sex is always the same as their biological sex
• There is no general duty to allow a child to ‘socially transition'

It also provides a checklist of considerations for school staff considering requests for social transition which include:

• Allow for watchful waiting
• Make parents aware
• Comply with the school or college’s safeguarding obligations (legal duties will differ depending on the request)
• Take into account:
  • The view of parents
  • The age of the child
  • The seriousness and context of the request
  • The long- and short-term impact on the child
  • The impact on other pupils

Specific issues

The guidance also provides answers to some very difficult issues over which there has been much uncertainty for schools so far, including:

• Schools should make sure competitive sport is fair and safe for all pupils, which will almost always mean separate competitive sports for boys and girls
• Schools must provide sex-separated toilet facilities for pupils aged eight and over and suitable sex separated changing accommodation and showers for pupils aged 11 and over
• Single-sex schools can refuse to admit pupils of the opposite biological sex, regardless of whether they are questioning their gender
• Sleeping arrangements like dormitories, tents and shared rooms should be sex separated

Our thoughts

The Cass Review of gender identity services for children and young people provides context for the guidance and we recommend schools familiarise themselves with the interim report which was published in February 2022. The report urges caution in the context of a massive demographic shift and increase in gender questioning children. It says there are many factors involved in this shift. It follows that schools must be confident to explore these issues with the child/young person and not be pressed into taking an unquestioning approach which may not be in their best interests or those of others.

The emphasis of the guidance is coming to informed, balanced decisions on a case by case basis, which we regard as best practice. However, it covers sensitive matters and is inevitably controversial. It also expressly covers matters of law which are as yet untested in the courts. The guidance is also not always explicit about the underlying legal considerations and there is a risk of misinterpretation.  For example, while it says that there is no general duty to allow a child to socially transition, which is accurate, it does not expressly qualify this with reference to the specific legal duties in the Equality Act 2010 which require individual judgements to be made to avoid unlawful discrimination.  

Whatever your view of the issues here, in coming to complex judgements in matters on which schools are not expected to be the subject matter experts, it is reasonable to rely on guidance produced by the DfE and indeed the burden will be high to justify any departure. Nevertheless, there remains scope for challenge and perhaps a strong appetite for it whilst the guidance is in draft form. Due caution is recommended. Our advice is that schools should have regard to the draft guidance but should commit to review any arrangements once the final guidance is published.  It will also be prudent to seek legal advice on specific areas of contest which arise, as the guidance leaves open many judgements to be made by schools and there remains a significant risk of complaints and claims.  

Existing arrangements

  Arrangements which schools have already made for gender questioning children should be reviewed against the guidance. Whilst it is likely to be in the pupil's best interests to maintain arrangements which are working, if they are contrary to the guidance, you should take appropriate action to bring them into alignment.

Dedicated policy?

It is a decision for each school, but we have seen an appetite for dedicated policies for some time.  It is not a legal requirement to have one, but it can help to bring clarity and consistency of approach.  Schools may introduce a policy now or wait for the final guidance but should take a balanced view of the practical benefits of a policy versus the greater risk of legal challenge whilst the guidance is in draft. Any policy should be reviewed as soon as the final guidance is published in due course.

If you have any questions about the guidance or need advice on any of these issues, please contact James Garside in our Regulatory Compliance team on 0117 314 5639, or complete the form below.