As if the challenge posed to her by RAAC wasn’t enough, here’s another for Gillian Keegan – and for Kemi Badenoch, who came in top of our monthly Cabinet League Table yesterday, not to mention Rishi Sunak. It involves children, parents, schools and doctors, and has implications for rights, mental health, responsibilities and culture – as well as the management of a restive parliamentary party. Welcome back the contested issue of pupils in schools who want to change their gender.
It’s important to be clear at the start about aspects of the matter on which the Education Secretary and Equalities Minister agree. Neither want pupils who are biologically male using girls’ changing rooms or playing in their sports teams. But as Mark Lehain has pointed out on this site, there are competing claims about what the law does and doesn’t allow schools to do.
Opinion divides between what he described as 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,” Lehain wrote. “They say that existing rules around sex-based exemptions and “proportionate means of achieving a legitimate aim” are enough.”
However, “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”. At any rate, guidance for schools from the Education Department was due to be published before the summer recess. It was delayed.
Keegan and Badenoch may have been agreed about sports teams and changing rooms, but they differed on a more fundamental question. “The question is whether a 16/17 year old, in a school setting, wants to change their pronouns with their parental consent and whether that’s something they should be allowed to do – and we think the answer to that is: yes,” Keegan told the House Magazine.
She wanted parents to decide. This raised a number of further questions, one of which was put to her – namely, whether a pupil who told a teacher that they wished to change their gender would be reported to their parents. And, as Lehain pointed out, any policy that allowed some pupils to transition but not others would be open to legal challenge.
Maya Forstater has argued on ConservativeHome that “the only fair, safe and reasonable policy is that when it comes to school pupils, “sex” means what it always has: girl and boy, male and female, and the pronouns that go along with these ordinary words. This should not up for negotiation.” This is closer to the position that Badenoch took.
At any rate, both Ministers, and Rishi Sunak too, have been told by government lawyers that if they want an outright ban on pupils transitioning in schools – changing rooms, pronouns, sports teams, the lot – then they need to change the law. The Times reported in July that such is the view of Victoria Prentis, the Attorney-General. I’m told that among the lawyers consulted was James Eadie, the “Treasury Devil”.
So the Prime Minister must make a decision. Does the Government commit to a Bill proposing a ban in November’s King’s Speech? As I say, there’s no support from Ministers for the view that “schools should be facilitating childhood transition: treating a boy who says he is a girl as if he is one, and vice versa (and setting them on a pathway to take puberty blockers and hormones to try to maintain the illusion when puberty inevitably breaks the spell,)” as Forstater put it.
But opinion over such a Bill is divided – and to explain the differences among Ministers and advisers in their full dimensions I must turn from policy to politics. A Bill would mean debates and, we should presume, votes. And while a majority of Conservative MPs may believe that pupils shouldn’t be allowed to change their pronouns, not all may agree.
A Bill would therefore expose the Government to the risk not only of dissenting voices but – worse from the whips’ point of view – amendments, allowing those voices the opportunity to vote in ways hostile to the purpose of the measure. So what? (Say some.) Let them – and take them on. Use the Government’s majority in the Commons to crush opposition. Send a signal to voters that Ministers will confront and challenge woke – outside the Party and within in.
This lobby argues that a risk-averse Keir Starmer wouldn’t dare whip his MPs against a ban, and that proposing one would split Labour MPs even more visibly than Conservative ones. The case for a ban on transitioning in schools is part of a wider argument about Sunak defining himself more sharply, and proving that he really is a “full-spectrum Conservative”.
However, I want you to imagine Sunak discussing the parliamentary options with the Chief Whip. Wouldn’t the latter advise roughly as follows? “Look, Prime Minister, we both know the parliamentary party is tricky to manage at the best of times – majority of 60 or not. That’s why, the Windsor framework excepted, we’ve tended to avoid votes that threaten revolts: think housing targets, think onshore wind.”
“Above all, think ban on trans conversion therapy. We could simply have left the proposal well alone. But, surprising as it may seem, a slice of our backbenchers actually want one. But rather more don’t. Which means trouble. Splits, Prime Minister. Divisions. Colleagues slagging off other colleagues. Media mania. Hence our plan for a draft bill. You know the score: take our time, long grass, string it out, mature consideration in committee – all that.”
“The question with this one is: why would we allow Alicia Kearns and all the rest of them another chance to grandstand? Remember that conversion therapy amendment to the Online Harms Bill? The draft bill was part of the price we paid for getting them to drop it. Sure, a Bill banning transitioning in schools could be drawn tightly – and so not amended easily.
But a lot would depend on the drafting. Suppose Labour found a really clever amendment, and some of our colleagues backed it? Or vice-versa? And even if they didn’t, there would still be a row on the floor of the House, as I say. Better to publish some guidance, ask for views on it – and when John Hayes and company say it isn’t strong enough, hint at a manifesto commitment to a ban.”
Now, I don’t know what you make of it all. But I suspect that an approach that avoids exposing differences among Conservative MPs might appeal to the Prime Minister. Keegan could get on with publishing and consulting. Team Badenoch could brief that she had been over-ruled. And everyone would be happy – or rather, nearly everyone, near the top of the Government at least.