This another extract from the Attorney General’s speech about what is lawful and what is unlawful in relation to the provision of education and facilities in schools. In the speech, she makes reference to English law, School Premises (England) Regulations 2012, though similar regulations apply in Scotland, School Premises (General Requirements and Standards) (Scotland) Regulations 1967 with minor changes made in 1973 and 1979. Current regulations stipulate that separate facilities should be available for both boys and girls.
The Scottish Government are in the process of updating the regulations. They issued a consultation document which didn’t get many responses, but significantly, did support private facilities for girls. It is anticipated that changed regulations will apply only to new schools or those which have had major renovation.
What follows is a definition of what is legal under the Equality Act. It shows clearly that much of what the Scottish Government proposes to do will be illegal under the Equality Act, which is probably what they have already been told by their own legal team.
The challenge is particularly acute in schools and for those whose professional responsibilities are to child welfare. Obviously school staff are highly motivated to do their best for children. To do this, they need to understand their legal obligations, understand the evidence about how best to support gender questioning children and know how to make a best interest decision for each and every child under their care.
The problem is that many schools and teachers believe – incorrectly – that they are under an absolute legal obligation to treat children who are gender questioning according to their preference, in all ways and all respects, from preferred pronouns to use of facilities and competing in sports. All this is sometimes taking place without informing their parents or taking into account the impact on other children. Anyone who questions such an approach is accused of transphobia. In my view, this approach is not supported by the law.
For the sake of clarity, I will set out my view on the legal position under the Equality Act. By way of preliminary note, under 18s are unable to obtain a Gender Recognition Certificate and schools will generally be dealing with children whose sex for the purposes of the Equality Act is that registered at birth. As used by Dr Hilary Cass in her interim report, I use the terms trans-boy to mean a biological female who identifies as a male and trans-girl to mean a biological male who identifies as a female. I use both as shorthand to include all those claiming protection under the characteristic of ‘gender reassignment’, as referred to under the Equality Act. Taking each issue in turn:
- Yes, it is lawful for a single sex school to refuse to admit a child of the opposite biological sex who identifies as transgender. This can be a blanket policy to maintain the school as single sex. This does not constitute unlawful direct discrimination on grounds of sex under schedule 11 nor does it constitute unlawful indirect discrimination on grounds of gender reassignment. This is clearly a proportionate means of achieving a legitimate aim.
- Yes, it is lawful for a mixed school to refuse to allow a biologically and legally male child, who identifies as a trans-girl, from using the girls’ toilets. This does not constitute direct sex discrimination and is not unlawful indirect discrimination on grounds of gender reassignment. Indeed, if the school did allow a trans-girl to use the girl’s toilets this might be unlawful indirect discrimination against the female children. Further, in law, there is a duty to provide separate single sex toilets, a breach of which would be unlawful under the School premises (England) Regulations 2012 and the Education (Independent School Standards) Regulations 2014.
- Similarly, yes, it is lawful for a mixed school to refuse a biologically and legally male child who identifies as a trans girl from using a single sex girls’ dormitory. This is neither direct sex discrimination or unlawful indirect discrimination on grounds of gender reassignment. Sufficient comparable accommodation must be provided to both girls and boys. Protecting girls’ privacy, dignity and safety are eminently legitimate aims.
- Yes, it can be lawful for schools to refuse to use the preferred opposite-sex pronouns of a This does not necessarily constitute direct discrimination on grounds of sex, particularly if unsupported by the child’s parents or by medical advice. Nor is it necessarily indirect discrimination on grounds of gender reassignment where a school has considered and can justify the approach. As set out in the interim Cass report, this is ‘social transitioning’ and is not a neutral act. It is a serious intervention and should only be done upon the advice of an independent medical practitioner. Furthermore, schools and teachers who socially transition a child without the knowledge or consent of parents or without medical advice increase their exposure to a negligence claim for breach of their duty of care to that child.
- Yes, it can be lawful for a school to refuse to allow a biologically male child, who identifies as a trans girl, to wear a girls’ uniform. This will be a significant part of social transition and the inherent risks of that could present an ample legitimate aim. Therefore, this does not necessarily constitute unlawful direct sex discrimination nor is it likely to constitute unlawful indirect discrimination on grounds of gender reassignment. Court of Appeal authority permits different dress codes for male and female employees and no rational distinction can be made for school uniforms.
- Yes, it is lawful for a school to refuse a biologically and legally male child who identifies as a trans-girl from participating in girls’ single sex sporting activities. This does not constitute unlawful direct sex discrimination nor is it unlawful indirect discrimination on grounds of gender reassignment. This single sex exception is based on the average performance of male and female participants.
- And lastly, yes parents have a right under the Freedom of Information Act 2000 to request access to teaching materials used in their children’s state funded schools. They could also make an internal complaint followed by referral to the Department for Education and ultimately via judicial review. But parents do have the right to know what is being taught to their children.
It is therefore wrong for schools to suggest that they have legal obligations which mean that they must address children by their preferred pronouns, names, or admit them to opposite sex toilets, sport teams, or dormitories. A right not to suffer discrimination on grounds of gender reassignment is not the same thing as a right of access to facilities provided for the opposite sex. The exceptions in Schedule 3 and 11 create a mechanism whose sole purpose is to ensure that even though there is a general prohibition of sex discrimination, schools are legally permitted to take a single sex approach. This is supported by the case law. Parliament could not have plausibly intended for these specific exceptions to be subject to collateral challenge by way of complaints of indirect discrimination by other protected groups such as those with reassigned gender. This would be to risk the Equality Act giving with one hand, and promptly taking away with the other.
Schools should consider each request for social transition on its specific circumstances, and individually, and any decision to accept and reinforce a child’s declared transgender status should only be taken after all safeguarding processes have been followed, medical advice obtained and a full risk assessment conducted, including taking into account the impact on other children. I hope that understanding the law will free up schools to act in each and every child’s best interest rather than being driven by a generic misunderstanding of legal duties.
This legal view is supported by the emerging evidence. As the interim Cass Report points out, ‘it is important to acknowledge that it is not a neutral act’ to socially transition a child and there are different views on the benefits versus the harms and ‘better information is needed about the outcomes’. Given – I quote – the ‘lack of agreement, and in the many instances the lack of open discussion’ among clinicians there are very real legal dangers of schools ‘socially transitioning’ children in this way. Since the interim Cass report, schools must be sensitive to the fact that gender distress may be a response to a range of developmental, social and psychological factors- that something else may be going on. The fact that there has been an enormous increase in the number of cases, in addition to a complete ‘change in the case-mix’ of those with gender distress within the last decade, from predominantly boys presenting in early childhood to teenage girls with no prior history, the fact that ‘approximately one third… have autism or other types of neurodiversity’ and ‘there is over-representation’ of looked-after children, should illustrate the complexity of what schools are dealing with. Schools have a duty of care in relation to the health, safety and welfare of their children and they risk breaching this duty when they encourage and facilitate a child’s social transition as a blanket policy; or take the decision to do so without medical advice. Given the emerging nature of the evidence and the fact that even clinical professionals find it challenging to know whether transition is the right path for a child, it is not reasonable or fair for teachers to have to make this onerous decision alone. This is a decision that can have lifelong and profound consequences for the child.
This is particularly so when the child is harmed as a consequence, especially if social transition were to lead subsequently to binding, or medical or surgical procedures, and even more so if done without the knowledge or consent of the child’s parents.
To emphasise again, before going ahead with social transition, schools should get the best multi-disciplinary team around the table – including clinical professionals – and parents. In children’s healthcare the legal presumption is that parents act in the best interests of their children, until and unless there are strong grounds to suggest otherwise. There is no other situation where a school would make a significant life changing decision about a child without involving the parents – these children should not be treated any differently.
I understand that my comments may make those experiencing gender distress anxious, particularly when they may be waiting to access support from the NHS. More needs to be done to ensure that children do receive that support in a timely fashion, and more generally that being gender non-conforming is accepted and supported. Stereotypes of what it means to be a boy or girl can be challenged. But it is important that we take a prudent approach, particularly as we await the full Cass report.
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