Mark Lehain is Head of Education at the Centre for Policy Studies.
I wrote in July that the postponement of the trans guidance for schools wasn’t necessarily a bad thing, as it’s better to try and get things right first time, especially if it’s controversial.
However, if recent press briefings are accurate, debate is still going on within the Government as to what the law says schools can or can’t do.
It’s probably come down to one or two of the most contentious aspects, because when you break the issue down into day-to-day specifics, most gender-identity related things in schools already have clear positions in terms of the law and safeguarding practice.
Can schools teach children gender identity theory as a fact, or have pupils and staff behave as though it is? No. It’s clearly a contested political theory, and so cannot be presented as fact.
Can students be taught about it? Yes, as long as it’s covered like any other contentious issue: alongside other credible alternatives, and at a point where they can properly grapple with the different views on it.
(“Gender identity” is listed in statutory guidance as something that must be taught by schools as part of Relationships Education/Relationships & Sex Education (RSE). This needs to be changed to bring it in line with the law governing school impartiality. The Department for Education has a review of RSE going on right now, so they can put this right as part of that.)
How should schools handle requests for a child to socially transition?
It seems that the NHS and others have decided that social transitioning is a medical intervention that doesn’t require signing off by a qualified doctor i.e. it’s more like off-the-shelf paracetamol or over-the-counter codeine than prescription-only painkillers.
This is a shame, as it means schools will continue to face amateur, not professional, diagnoses.
If a school thinks a child is struggling with their mental health then they must involve parents, unless to do so would put the child at immediate risk of harm. This is no different to any other concerns about a child, to ensure those who care most about them are aware and can help them as they see best. Before landing on social transitioning as an intervention, they must explore all other underlying issues and options holistically.
Even if social transitioning is requested, what does this actually mean in practice? Can a school give a boy who says they’re a girl access to girls’ toilets or changing rooms or dorms? No. The Equality and Human Rights Commission is clear about when single-sex exceptions are legitimate.
Can single-sex schools be compelled to admit pupils of the opposite sex? No.
Can a gender questioning pupil play sports with the opposite sex? Only as much as any other pupil, following the usual rules as normal about safety and fairness – so no teenage boys playing contact rugby or boxing with girls.
Can a child wear the uniform of the opposite sex? Basically, yes, if it’s already available. You won’t find many places where trousers aren’t already an option for girls, or if it’s co-ed, where a lad hasn’t gone out of his way to wear a skirt. Must a boys’ school have a skirt option on its uniform list, or a girls’ school have trousers on theirs? No. Do pupils have a right to wear something that’s not on the uniform list? No.
It’s only when we come to names and pronouns that things get grey.
Can a child change the name they go by? Within reason. Kids have adopted nicknames forever. If their friends go along with it, fair enough.
But must classmates or teachers use a preferred name or pronouns? It’s not clear, hence ministers are still grappling with it right now. I’d like to think freedom of belief and expression was protected here, but there are different legal opinions on how far one can compel pupils or employees to use language or act in ways requested by others. That’s why some think the law needs amending.
In addition, pupils have rights, and schools responsibilities, based on legal sex not gender preference. Using gender in day-to-day interactions has the potential to cause confusion and undermine these. For example, teachers need to know who is a boy or a girl in their class in case of a medical incident.
Girls have the right to boy-free changing rooms, toilets, and dorms, and staff need to know pupils’ sex to enforce this. Pupils are entitled to a member of staff of the same sex being present if they are searched, and schools have a responsibility to make sure this happens. When it comes to schools, sex really does matter.
Brilliant legal minds of all persuasions are still struggling to satisfactorily square the circle, but schools need something ASAP. So given everything, I’d prioritise sex over gender identity for safety and practical reasons, then have ministers publish guidance that is as black-and-white as possible, and prepare for the inevitable legal challenges.
Ministers should state that how families look after their children at home is their own business, but at school they will be looked after according to their sex, not gender preference.
If judges backed the guidance as it stood, great. If they decided that the current law means teachers or pupils can be compelled to refer to a boy as a girl, then the Government might decide the law needs changing.
Either way, schools and families deserve legal clarity on this emotive and contentious issue once-and-for-all; only the government can provide this.