The Equality and Human Rights Commission (EHRC) has been working on new guidance for schools on pupils with the protected characteristic of gender reassignment since 2017. There has been limited consultation. On Aug 29 a draft version of the guidance was leaked onto the internet. This is the first time we have been able to see it. The following is a short overview of the major problems we have seen with the current draft.
1) SECRETS AND LIES
The draft guidance suggests that schools should, if requested, keep a child’s sex secret from teachers and other pupils, and collude in lying about their sex.
“A group of pupils go on a school trip …the school considers the age group, privacy risks from sharing tents and the lack of awareness that the pupil is trans…. The trans pupil is satisfied that her trans status will not be disclosed by the arrangements. “ (page 27)
“School should not give the vaccination to a trans girl but should make suitable arrangements so that, if her birth sex is not widely known, it is not inadvertently revealed.” (page 29).
|Recommendations that suggest a school should agree to allow a children to enter the school with their sex kept secret are found throughout the EHRC draft guidance, but the question of whether this is appropriate is never discussed. This practice has safeguarding implications. Telling children to lie or keep secrets about sex puts them at risk of abuse. Keeping secrets isolates children from their peers and from sources of support.
The Equality Act does not require this. An inclusive and responsible approach would be for a school to agree with a child and their parents a form of words to use that explains honestly and sensitively that this child would like to be treated socially as a boy or a girl, but that their sex has not changed.
2) PUSHING GIRLS OUT OF THEIR OWN CHANGING ROOMS
The draft guidance says that male children who identify as girls should be allowed to use girls’ changing rooms and toilets. It suggests that if female children feel uncomfortable in this circumstance, they should be offered the choice of using a separate changing room (such as the disabled facilities).
“trans boys and trans girls can use the single-sex facilities that align with their gender identity if they wish to do so, A trans girl pupil opts to use the girls’ changing room, and most of her fellow pupils are happy with this arrangement. However, one pupil is uncomfortable with this arrangement, so chooses to use the private changing room instead.” ( page 15)
|This is not what the Equality Act or existing EHRC technical guidance says. Girls and boys over the age of 8 should be able to change, wash and go to the toilet with privacy from the opposite sex. An inclusive and responsible approach would be to make accessible changing facilities available for any child that does not want to change with children of their own sex, not to force girls out of their own changing room.
NB: The Scottish government has withdrawn LGBT youth schools guidance which makes this recommendation because the “the approach risks potentially excluding other girls from female-only spaces. That cannot be right.”
3) UNDERMINING FREEDOM OF THOUGHT AND SPEECH
The guidance says teachers and other pupils must describe a male child as “she” and a female child as “he” ( or use ‘non-binary’ pronouns like ze, zir). It says that “appropriate steps” should be taken if a person refuses.
“If a pupil has legally changed their name, then the school must use the pupil’s new name and relevant pronoun.” (page 19)
“Concerns about repeated or deliberate use of a previous name or pronoun should be investigated and appropriate steps taken to address the issue” (page 20)
|There is no law about using pronouns. This could be challenged as compelled speech, infringing on the right to freedom of belief of other pupils and teachers. It is not clear what “appropriate steps” the EHRC is suggesting, but if it says the school ‘must’ use preferred pronouns, this suggests a teacher could lose their job, or a child be expelled, for not complying.|
4) NO MORE ALL FEMALE SPORTS
The guidance says that schools cannot apply a ‘blanket policy’ of offering female only sports teams or sport competitions.
“If considering excluding a trans pupil as a competitor, schools should consider on a case-by-case basis objective evidence about whether inclusion would result in unfair competition”
“Schools should consider ways of enabling all pupils to participate in sports, including competitive events that align with their gender identity” (p24)
|This is not what the Equality Act says. Single-sex sports are allowed for fairness and safety. Sports are not segregated by gender identity. ‘Case-by-case’ assessments are not fair on anyone. It is not fair on female pupils to allow some males into female sports, and it is not fair to put pressure on transgender pupils as they are going through puberty. It would be fairer and more inclusive for schools to maintain single-sex sports for age groups where this is justified, and to make clear that sex and gender identity are not the same thing. Children who identify as transgender should be welcome to compete in sports with children of the same sex and should not be bullied.|
5) PUTTING SINGLE-SEX SCHOOLS IN DOUBT
The leaked draft guidance says that a singl-sex school is likely to be discriminating if it does not admit pupils of the opposite sex who identify as transgender (i.e. treat a female child as if they were a boy and allow them into an all-boys school on that basis).
“The school is likely to be discriminating against the trans pupil unless it can demonstrate its decision is a proportionate means of achieving a legitimate aim.”(page 33)
“To meet the needs of and avoid disadvantage to trans pupils, schools should take a case-by-case approach to admission requests by trans pupils.”(page 33)
|This is not what the Equality Act says. Single-sex schools are allowed by law to have a policy of only admitting children of a single sex (regardless of whether they identify as transgender). This does not require individual case-by-case assessment. Putting a child into a single-sex school of the opposite sex would lock them into a decision, making it difficult to explore their identity and their options as they grow up. A single-sex school cannot safely and fairly accommodate a child living as if they were a member of the opposite sex in sports, changing rooms, school trips etc|
|None of these problematic recommendations are required by the Equality Act 2010. They create problems of discrimination for other groups, and health, safety and safeguarding risks for both children who identify as transgender and their peers.
The Women and Equalities Select Committee report on the Equality Act stated “We do not believe that non-statutory guidance will be sufficient to bring the clarity needed [on single and separate sex services]. We recommend that, in the absence of case law the EHRC develop, and the Secretary of State lay before Parliament, a dedicated Code of Practice.”
THE EHRC should not be publishing any more non-statutory guidance until government has responded to the WESC recommendations that PARLIAMENTARY-APPROVED guidance is needed.
If you are concerned about this write to Liz Truss (Minister for Women and Equalities), Gavin Williamson (Secretary of State for Education) and David Isaac (Chair of the EHRC).