Yesterday morning, the Times reported that the Government’s much-delayed update to guidance on how schools should handle children who identify as trans will be much more whimper than bang: “Schools ‘do not have duty’ to let children change gender identity”, reads the headline.
Basically, it will be up to individual schools to decide their own policies on such matters as whether to use a pupil’s preferred identity, or to inform their parents that they are “socially transitioning” – that is, starting to live as a different gender without any medical intervention.
Where the new guidance does get anywhere close to prescribing how the Government feels headteachers ought to handle the issue, it’s completely toothless:
“The guidance will urge schools to proceed with caution and allow pupils to identify as another gender only in limited circumstances, but this is likely to be seen as unhelpful by head teachers unless it is categoric about scenarios. Schools will be told to take particular care with younger children amid concerns that social transitioning could have a more significant impact.”
It goes on to report that: “Ministers believe that the guidance will stop some schools from taking an “affirmative” approach…”. How many is “some”? No idea.
But given the very strong feelings in parts of the teaching profession, and the pressure that could be brought to bear by activists against any school that stuck their head above that particular parapet, it would be surprising if there were nearly so many as ministers hope.
That’s presumably why the publication of the guidance has been held up for so long, as battle waged within government about whether or not to put stricter guidance on a statutory footing. However that plan was scuppered, as so many these days seem to be, by an intervention from the lawyers:
“The Government had considered an outright ban on social transitioning, under which children can change their names, pronouns and uniforms. However, Victoria Prentis, the attorney-general, advised that such an approach would be unlawful under the Equality Act and would require new legislation.”
This is no discredit to the Attorney-General, who was doing her job. But – and this is so irrespective of one’s personal view of what the correct policy is – it is a damning indictment of the government that it, despite having had an overall majority for four years, is still being hamstrung by legislation New Labour passed in the dying days of its last parliament.
(It will surely prove a similar story with Esther McVey’s new campaign against “the thousands of pounds government is spending on external ‘equality, diversity and inclusion’ consultants.” That industry exists to help businesses navigate a framework of obligations set out in legislation. What is the Government doing about that legislation? Nothing.)
It also feels telling that another mooted proposal – compulsory doctors’ consultations before allowing children to socially transition – foundered on the rocks of state capacity: “the Department of Health said that the NHS would not be able to provide enough doctors and clinical support”.
That concern also looms, and larger, over the upcoming plan to ban conversion therapy. Earlier this month, Kemi Badenoch provoked ire from activists by suggesting that so-called affirmative care could be included in the scope of the policy.
She cites cases such as that of Keira Bell, a woman who de-transitioned and later brought a judicial review against the NHS’ gender identity clinic, which closed in 2022 and has since been subject to some devastating reporting on its practices. The Equalities Minister says that doctors were “fearful of giving honest clinical advice to a child because if they do not automatically affirm and medicalise a child’s new gender they will be labelled transphobic”.
Maybe. But how does one legislate against social pressure? Hannah Barnes’ exposé of the Tavistock revealed two major problems: ideological capture of the institution by people with very strong personal beliefs about trans issues – who were, understandably and inevitably, drawn to work there – and the extraordinary pressure to sign people off created by the surge in demand for its services and the huge patient backlog.
There is no obvious way to legislate round those two mutually-reinforcing issues. If the Government wants to mandate neutral (rather than “affirming”) interrogation of adolescent gender dysphoria, it needs some way to ensure people prepared to conduct it actually end up in the relevant roles; if the process is thorough it must also be time consuming, which will compound the pressure on staff and the length of the waiting lists.
Badenoch is earning herself a reputation as a fighter on this topic: last week she spoke forthrightly about the importance of sex-segregated spaces to protect women from predators who will exploit “loopholes” created in good faith, and rebuked fiercely a Labour MP who tried to put words in her mouth about rise in the number of children identifying as transgender.
Yet just as sending a right-winger to the Home Office to talk tough on immigration hasn’t done anything to bring the numbers down, there is a limit to what even the most pugilistic equalities minister can achieve when the Government lacks either the time or the will to address deep-rooted legislative and institutional factors driving the symptoms ministers complain about.