Schools and transgender pupils: will new and revised guidance change the landscape in the UK?

We have written before about the challenges schools face in navigating equality law and the limited available guidance around arrangements with their transgender pupils.¹ Since that article, there have been several developments, suggesting there may be significant change for schools in the year ahead.

• In April 2022, the Department for Education (‘DfE’) announced that it was producing new guidance for schools on their responsibilities in relation to transgender pupils. It said it would be working with the Equality and Human Rights Commission (‘EHRC’) in relation to this, and that its aim is to ensure the guidance is as clear as possible for those running schools.
• Then in early August 2022, then Attorney General (now Home Secretary) Suella Braverman KC gave a well-reported speech outlining various issues to be addressed in that new guidance.
• Finally, and perhaps most significantly, on 24 September 2022, in the wake of settling a court case with parents who took legal action after being labelled transphobic by a primary school, the government announced it will be reviewing Cornwall’s Schools Transgender Guidance² (the ‘STG’).

It’s obviously difficult to anticipate what these pieces of guidance might contain, once they are reviewed or published. But there are some indicators of the possible direction of travel.

Current challenges for schools

Understanding and applying the existing legal framework relating to schools’ responsibilities to transgender pupils can be challenging.

Firstly, there is uncertainty over how parts³ of the main piece of legislation, the Equality Act 2010 (the ‘Act’), apply to school pupils who were assigned one sex at birth and who now identify as another, but who do not have a gender recognition certificate.⁴ The courts, which are usually the first port of call when looking to interpret legislation, have provided little help in the way of case-law; the legal action which led to the DfE’s review of the STG was settled prior to it being ruled on by a court.

In addition, regulatory guidance⁵ from the DfE does not generally set out clearly the regulator’s own interpretation of the Act or best practice, but leaves it more to those running schools to interpret the legislation themselves and to come up with appropriate policies for their own circumstances. This cuts both ways, of course; there can be great advantage in having more flexibility when a school is setting its policies.

But this is all in the context of prominent commentators giving widely differing views as to how schools can, and should, interpret and apply key parts of the Act.

The current framework

In some of the key areas, the current position is as follows:

Sports

The Act contains an exception to the default prohibition on discrimination based on sex in relation to gender-separated sport. This exception applies to any activity which is a ‘gender-affected activity’. This term is defined as ‘a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity’.

The DfE’s guidance⁶ stresses the need for schools to take into account age and stage of development in considering whether it would be appropriate to utilise the exemption. The Independent School Standards⁷ (the ‘ISS’) further provide that sports can be restricted to pupils of one birth sex where the restriction is necessary in the interests of fairness and/or safety.

Facilities (changing rooms and lavatories)

The DfE has stated that schools have ultimate discretion as to what facilities they should provide, and whether gender-neutral or unisex lavatories should be provided, within the framework of the School Premises (England) Regulations 2012 (the ‘2012 Regulations’).

The DfE’s guidance on the 2012 Regulations⁸ provides that:

• separate lavatory facilities must be provided for children who are 8 or older, unless a facility is in a room designed for use by one person at a time which can be locked by the user from the inside; and
• suitable changing accommodation and showers are required for students who are 11 or older who are receiving physical education (the guidance does not go into detail about gender).

ISS guidance suggests that to meet the standard for all pupils, depending on the needs of the pupil cohort, schools may need to provide both gender-neutral/unisex facilities and single sex facilities. The guidance explains that schools may wish to consult with the school community if they are considering moving fully or partially to gender-neutral facilities so as to ensure that the needs of all pupils will continue to be met.

Uniform

The DfE’s guidance on school uniforms⁹ makes clear that schools should bear in mind their obligations not to discriminate unlawfully against any of the school’s pupils, or to put particular students at a disadvantage because of their gender or gender reassignment. It advocates that schools design flexible policies to allow for necessary exceptions.

Recently published guidance for maintained schools and academies¹⁰ states that schools should seek to make their uniform policy as inclusive as possible in order to accommodate cultural and religious needs of pupils and to avoid gender stereotyping.

Boarding schools

The Act has an exception for boarding schools which allows mixed-sex schools to admit borders of one sex only. However, under the current law and guidance, it is unclear whether admitting transgender pupils who were born the opposite sex would fall within or outside this exception.

There are also specific exceptions in the Act for schools relating to facilities, including residential accommodation being provided separately to male and female pupils for ‘privacy or decency’ reasons.

The DfE’s National Minimum Standards for boarding schools¹¹ provide that accommodation must give boarders appropriate privacy (taking into account sex, age and any special requirements), and that where children share a bedroom, they are able to express a preference about whom they share with.

Where we might go from here

The government’s commitment to reviewing the STG is a noteworthy development.¹² The STG – first produced by Cornwall Council in 2012 – had been regarded as best practice for many years.

The fact that the DfE settled with parents who brought a legal claim against it (including agreeing to meet £22,000 in the parents’ legal costs), and confirmed that the STG will be reviewed, suggests hesitancy by the DfE about the STG in its current form. It also provides a point at which new policy positions and practice around these issues may emerge.

In addition, as we’ve mentioned, in early August 2022, Suella Braverman gave her own thoughts on rights and responsibilities in relation to transgender pupils and what the new DfE guidance would look like. The then Attorney General said that schools:

• must offer single-sex toilets;

• can decline requests from pupils in relation to preferred pronouns, and that the new DfE guidance would make this point clear;
• have the right to exclude transgender pupils from single-sex spaces;
• (in the case of single-sex schools) have the right not to admit a trans pupil if their birth sex differs from the sex eligible to attend the school;
• may have ‘ample legitimate aim’ (in the context of a legal test under the Act) to implement uniform policies which indirectly disadvantage transgender pupils;
• would increase their exposure to legal claims for breach of duty of care if they socially transitioned a child without the consent of the child’s parents; and
• would be subject to the scrutiny of Ofsted in relation to their adherence to any relevant regulations.

It is unclear how far Braverman’s comments can be read as speaking to the final content of the new DfE guidance, particularly as she has now moved to the Home Office. In any event, it will be the DfE, not the Attorney General’s Office, which ultimately produces the guidance, and the DfE, in addition to consulting with the EHRC, will likely consider views from all sides of this debate; indeed the DfE has confirmed that it will be undertaking a public consultation on this guidance.

However, to the extent that Braverman’s comments might indicate a general direction of travel, the new DfE guidance may at least:

• tackle head-on a number of current areas of uncertainty for schools;
• set out the DfE’s own interpretation of relevant sections of the Act;
• go beyond outlining rights and options for schools, and perhaps contain obligations and requirements; and
• potentially be backed up by regulations, adherence to which may be monitored by Ofsted.

If the STG is revised, and/or if the DfE guidance does reflect the comments made by Braverman in August, this will clearly constitute a significant change to the landscape.

Schools will therefore wish to keep a close eye on any further comments as to:

• what the new DfE guidance may contain or cover (particularly anything from the DfE itself);
• what amendments may be made to the STG; and
• when the new DfE guidance and the amended STG will be published.

We will comment further in due course.