The Education Law Digest: Winter Term Edition – Recently updated guidance

Gender-Questioning Children

The Department for Education has published its long awaited non-statutory guidance for schools and colleges on gender-questioning children (the guidance does not use the word ‘transgender’ although this term is used in other guidance – see below). The guidance, which is subject to a 12-week public consultation which ends on 12 March 2024, is described as a ‘parent first’ approach and advises that parents should not be excluded from decisions arising out of a pupil’s request to ‘socially transition’ their gender and that schools and colleges should adopt a cautious approach. It counsels against sanctioning teachers, staff or children who do not use a pupil’s preferred pronouns (although preferred names should be used) even if social transition is agreed. A link to recent article with further information is here.

This guidance is likely to be challenged during the consultation period as the BBC have reported that the government’s lawyers advised that it was ‘high risk’…  Fear not – we will keep you updated!

Equality and Human Rights Commission updates its technical guidance for schools in England

In 2014 the Equality and Human Rights Commission (EHRC) first published guidance for schools to help them comply with their duties under the Equality 2010.  On 22 September 2023 that guidance was updated so that references to sex and gender reassignment (both of which are protected characteristics under the Equality Act) reflect current developments.  The key changes were:

• The definitions of ‘sex’ and ‘transgender’ were updated and shortened.
• The old guidance provided that gender segregation was permitted in limited circumstances.  The new guidance clarifies that ‘sex segregation is permitted in certain situations, such as where is it necessary and appropriate to preserve privacy and decency.  The law requires schools to provide single sex toilet facilities’ for children aged 9 and above and single sex changing facilities must be provided for children aged 12 and above. Schools can therefore segregate according to biological sex rather than gender. The guidance recommends that transgender (or gender questioning) pupils should be provided with private changing facilities.
• The FAQs previously advised that it would be discriminatory to not use a transgendered pupil’s preferred pronouns or name.  This guidance has now been removed however, the guidance states that a staff member who ‘repeatedly tells a transsexual pupil that ‘he’ should not dress like a girl and that ‘he’ looks silly, which causes the pupil great distress” or requiring a trans-girl use the boys’ changing room when they were living as a girl could be committing direct and indirect discrimination respectively.

Importantly, issues relating to sex and gender reassignment are always fact sensitive and the level of risk varies on a case by case basis.

Review of RSHE statutory guidance expected

In March 2023 the Prime Minister announced that the Department for Education would review the current statutory guidance on relationships, sex, health and education (RSHE) in response to ‘disturbing reports that inappropriate material is being taught in schools’.  This is expected to be published in early 2024.  Schools are required to adhere to the guidance unless they have good reason to depart from it.

If you have any questions about any of the guidance outlined above please get in touch with one of our Specialist Education lawyers.