The UK government’s own trans guidance for schools could face a “high risk of successful; legal challenge,” according to leaked advice.
On Tuesday (19 December) the government published its guidance for schools when it comes to pupils transitioning.
Also on Tuesday, a report emerged in Schools Week containing leaked advice from the Department for Education’s (DfE) own lawyers. It warned of legal challenges to the guidance and against schools if they follow it. Schools Week stated that they got the leaked advice “in the last week.”
“Operating a presumption against social transitioning would be unlawful”
The advice referred to several passages that were ultimately left in the guidance.
One passage the government was warned about focused on pronouns. On the matter, the guidance states: “Primary school aged children should not have different pronouns to their sex based pronouns used about them.”
However, lawyers warned of a “high risk of successful legal challenge” to this position. Lawyers also said that the government’s safeguarding exceptions “conflated” obligations under the Equality Act and school safeguarding obligations. This also applied to guidance on school uniforms and other areas.
Sexual orientation and gender reassignment are both protected under the 2010 Equality Act.
Furthermore, the guidance mentioned that on “rare occasions” when pupils can change their pronouns, “no teacher or pupil should be compelled to use these preferred pronouns and it should not prevent teachers from referring to children collectively as ‘girls’ or ‘boys,’ even in the presence of a child that has been allowed to change their pronouns.”
As per Schools Week, lawyers warned this could open schools to legal challenge. This is because using collective nouns could be considered “indirect discrimination.”
Elsewhere, lawyers warned the government “that operating a presumption against social transitioning would be unlawful.” This appears to have been ignored. Lawyers also warned that including that there was “no general duty to allow a child to ‘social transition'” could open the guidance and schools up to challenges because it is “misleading/inaccurate.”
When the guidance discusses the use of toilets by pupils transitioning, it says the “default” should be for children to use facilities aligned with their biological sex unless it causes distress. Lawyers said there was no “threshold for distress” in law.
“It would appear this guidance leaves a lot of questions unanswered”
The Chief Executive of the Confederation of School Trusts, Leora Cruddas CBE, has said the organisation will be “seeking appropriate legal advice” to understand the position of schools. She also expressed disappointment the guidance was published as schools broke up for the holidays.
Meanwhile, Paul Whiteman, the general secretary of school leaders’ union NAHT, said they will review the draft guidance. But, he also said, “Upon an initial look, it would appear this guidance leaves a lot of questions unanswered.”
In response to the leaked legal advice a UK government spokesperson told Attitude: “We do not comment on leaks. The guidance is lawful and will help schools navigate these complex and sensitive issues, by urging caution, parental involvement, and prioritising safeguarding at all times.”
The guidance had been promised before the summer but was delayed. In October it was revealed that the government hadn’t met with a single LGBTQ organisation in writing the guidance.
While the Education Secretary, Gillian Keegan, said it put “the best interests of all children first,” it was described as cruel and workable,” by Labour MP Kate Osborne.
Robin Moira White, a lawyer who is trans, described it as “wrong in law in a number of respects”. She added that “If followed, would lead schools to act unlawfully towards trans pupils.”
The guidance is now open for a 12-week consultation.