Mark Lehain is Head of Education at the Centre for Policy Studies.
It emerged last night that the publication of the transgender guidance for schools has been delayed once again. The Times reports that this was because Number 10 and Kemi Badenoch wanted things firmed up in a number of ways, including a possible ban on pupils socially transitioning in school, but that legal advice provided by the Attorney General suggested that this might be unlawful.
For a long time now, the Government had promised that the guidance would be published for consultation before the summer holidays. That this is now unlikely to happen, even after 18 months and with all the professional and legal expertise available to ministers, shows the confusion and disagreement about what the law says schools should and shouldn’t do.
It also highlights the inconsistencies, conflicts, and challenges inherent in this stuff, and how hard it has been for teachers to navigate. No wonder groups like Stonewall and Mermaids were able to make the running on this stuff!
So what to make of the situation?
First of all, I don’t think we need to panic. It would have been great to have the guidance out now so people could consider things at leisure over the holidays, but waiting a bit longer so things can be properly thrashed out and clarified isn’t the end of the world.
The review of Relationship and Sex Education guidance is also going on over the summer, and this links closely to the trans work, so having them both come out at similar times might not be such a bad thing anyway.
Secondly, the clash we’re seeing was inevitable when you consider the different approaches to the topic across government.
For some, the issue is about “being kind” and building on what schools already do; for others it was about going back to first principles regarding safeguarding, medical ethics, and the law. Given that there is inconsistent practice across schools and differing views on what the law actually says, there were always going to be hold-ups at this stage.
That’s okay. We needed to go through this process to try to reach, once-and-for-all, a coherent and consistent understanding of what the law and medical practice requires!
And this clearly takes time and throws up things along the way. For example, at one point the requirement for parental consent for any transitioning at school was felt to be a major breakthrough.
It definitely solved the issue of schools doing stuff behind parents’ backs – an important step forward. But it didn’t take long for it to be pointed out that you’d end up with some kids granted the alleged right to transition, and others denied this, and that this was completely open to legal challenge.
Which brings me on to my final point: that there is still no consensus across government as to what the law says or requires has wider consequences. There are two main groups here: the clarifiers and the changers.
Clarifiers are adamant that the Equality Act is largely fine as it is and the issue is just how it has been (mis)interpreted due to activists. They say that existing rules around sex-based exemptions and “proportionate means of achieving a legitimate aim” are enough.
Changers hold the view that the Act itself is a problem here, and that it needs to be changed as it conflicts with what medical specialists say is the best thing for gender-questioning youngsters.
Plenty of people far smarter and more expert than I hold the above and other views. I don’t know if the Act needs changing. I do know that there’s little chance of this happening before the next election, and that even if legislative time was found for this, the chances of it being done without a massive parliamentary battle are zero. It’s a Pandora’s Box I’d be very wary of opening.
Furthermore, the Conservatives have been in power for the entire time that the Equality Act has been in law; it was passed during the wash-up ahead of the 2010 election. That its practical implications are still not clearly understood thirteen years later, and people have been left all this time to muddle through at the mercy of campaigners, is pretty embarrassing.
But that’s history: we’re really close to having an approach to this issue which has finally had the full attention of the Government’s legal and political brains.
The hold-ups and disagreements are not a bug but a feature of a democratic government doing its job in situations like this. Rishi Sunak and other ministers should be respected for getting a difficult job over the line, whenever final shape the solution takes.
Mark Lehain is Head of Education at the Centre for Policy Studies.
It emerged last night that the publication of the transgender guidance for schools has been delayed once again. The Times reports that this was because Number 10 and Kemi Badenoch wanted things firmed up in a number of ways, including a possible ban on pupils socially transitioning in school, but that legal advice provided by the Attorney General suggested that this might be unlawful.
For a long time now, the Government had promised that the guidance would be published for consultation before the summer holidays. That this is now unlikely to happen, even after 18 months and with all the professional and legal expertise available to ministers, shows the confusion and disagreement about what the law says schools should and shouldn’t do.
It also highlights the inconsistencies, conflicts, and challenges inherent in this stuff, and how hard it has been for teachers to navigate. No wonder groups like Stonewall and Mermaids were able to make the running on this stuff!
So what to make of the situation?
First of all, I don’t think we need to panic. It would have been great to have the guidance out now so people could consider things at leisure over the holidays, but waiting a bit longer so things can be properly thrashed out and clarified isn’t the end of the world.
The review of Relationship and Sex Education guidance is also going on over the summer, and this links closely to the trans work, so having them both come out at similar times might not be such a bad thing anyway.
Secondly, the clash we’re seeing was inevitable when you consider the different approaches to the topic across government.
For some, the issue is about “being kind” and building on what schools already do; for others it was about going back to first principles regarding safeguarding, medical ethics, and the law. Given that there is inconsistent practice across schools and differing views on what the law actually says, there were always going to be hold-ups at this stage.
That’s okay. We needed to go through this process to try to reach, once-and-for-all, a coherent and consistent understanding of what the law and medical practice requires!
And this clearly takes time and throws up things along the way. For example, at one point the requirement for parental consent for any transitioning at school was felt to be a major breakthrough.
It definitely solved the issue of schools doing stuff behind parents’ backs – an important step forward. But it didn’t take long for it to be pointed out that you’d end up with some kids granted the alleged right to transition, and others denied this, and that this was completely open to legal challenge.
Which brings me on to my final point: that there is still no consensus across government as to what the law says or requires has wider consequences. There are two main groups here: the clarifiers and the changers.
Clarifiers are adamant that the Equality Act is largely fine as it is and the issue is just how it has been (mis)interpreted due to activists. They say that existing rules around sex-based exemptions and “proportionate means of achieving a legitimate aim” are enough.
Changers hold the view that the Act itself is a problem here, and that it needs to be changed as it conflicts with what medical specialists say is the best thing for gender-questioning youngsters.
Plenty of people far smarter and more expert than I hold the above and other views. I don’t know if the Act needs changing. I do know that there’s little chance of this happening before the next election, and that even if legislative time was found for this, the chances of it being done without a massive parliamentary battle are zero. It’s a Pandora’s Box I’d be very wary of opening.
Furthermore, the Conservatives have been in power for the entire time that the Equality Act has been in law; it was passed during the wash-up ahead of the 2010 election. That its practical implications are still not clearly understood thirteen years later, and people have been left all this time to muddle through at the mercy of campaigners, is pretty embarrassing.
But that’s history: we’re really close to having an approach to this issue which has finally had the full attention of the Government’s legal and political brains.
The hold-ups and disagreements are not a bug but a feature of a democratic government doing its job in situations like this. Rishi Sunak and other ministers should be respected for getting a difficult job over the line, whenever final shape the solution takes.