Transgender and Gender Questioning Children Guidance for Schools

Overview

The Department for Education (DfE) has published draft non-statutory guidance for schools and colleges in England on the topic of ‘Gender Questioning Children’. This guidance does not apply to the rest of the United Kingdom.

The draft guidance is non-statutory, meaning schools will not have a legal duty to follow it. The draft guidance has been published alongside a consultation on the proposals (this closes on the 24 March, 2024).

In this article, we summarise the draft non-statutory guidance from the DfE and have consulted a range of legal specialists to bring concise, objective information to all school staff.

At Edapt, we have supported a range of our subscribers in recent years encountering a variety of the issues outlined in the guidance. We understand the various complexities and viewpoints of the topic so have taken care to write our summary with an objective and balanced approach.

We will continue to update this article with more information in the weeks and months ahead.

What does Edapt do?

Edapt are an apolitical and independent organisation (not a trade union) who offer edu-legal support and professional casework services in individual employment disputes and allegations, similar to some of the services offered by a traditional trade union. We provide employment support to school staff and leaders in schools and colleges in England and Wales.

You can find more about Edapt by clicking here.

What is the difference between statutory and non-statutory guidance for schools?

One of the complexities surrounding guidance given to schools from the DfE is the level of its legal compulsion.

In other words, are schools compelled by law to follow certain policies or are they suggestions that can be ignored? There are three main types of instructions that educational institutions can be told to follow:

Legal duties – acts that institutions MUST follow and would be in breach of the law if they did not e.g. schools must know and record the name of every pupil in their admissions register under the Education Act 1996.
Statutory guidance – sets out what schools SHOULD do in order to comply with the law although in exceptional circumstances and with good reason, they are permitted to not do so. The School Teachers’ Pay and Conditions Document (STPCD) is an example of statutory guidance that should be followed by maintained schools.
Non-statutory guidance – sets out practice that the DfE expects schools to follow although it is not a breach of the law if it is not followed, regardless of the reason. A recent example is the guidance on remote education for children published in January 2023.

The guidance discussed in this article falls under the non-statutory category. However, it should be noted that there are overlaps and implications to both legal duties and statutory guidance.

For example, where there is a requirement to record pupils’ names and sex under a register, schools still have to follow the legal duty under the Education Act 1996 but there is also some guidance within this new document about how a change in name might otherwise be recorded.

Do schools have to change their policies based on this new guidance?

The guidance is in draft form and is out for consultation and therefore the expectation for schools to follow the guidance does not yet exist although it does give an indication of what might be expected in the future. Whilst some schools may be following elements of the practice already, there is no expectation to write new policies at this time.

Should I follow this guidance or my own school’s policies?

You should follow your own school’s policies as it is likely that these are part of your contractual obligations. Your school may change their policies in relation to this guidance at some point in the future which should be communicated to you appropriately. For clarity the non-statutory guidance does overrule or supersede your own school’s policies.

What are the main points to take away from the guidance?

The DfE’s guidance includes sections on the following issues which we explain in more detail below:

Five overarching principles to support pupils questioning their gender
How schools and teachers can respond to requests from pupils and how to engage with parents
Handling pupil information such as registration of name and sex, changing names and the use of pronouns
How to manage single-sex spaces such as toilets, changing rooms, showers and boarding accommodation
School uniform information
Pupils taking part in physical education and sport
Single-sex school status

Some of the headline information includes (there are caveats to consider which is outlined in more detail in the the article below):

Schools and colleges have been told there is “no general duty” to allow children to change their gender identity
Teachers should still be able to refer to children collectively as “girls” or “boys”
Every school must record the name and biological sex of every pupil in the admissions register
Primary children “should not have different pronouns to their sex-based pronouns used about them”
Pupils may be allowed to change their names informally if it is in “the best interests of the child and parents have been fully consulted.”
Schools “must provide sex-separated toilets for pupils aged 8 or over, and suitable changing accommodation and showers for pupils who are aged 11 years or over at the start of the school year.”
It’s advised that a child questioning their gender should be held to the same uniform standard “as other children of their sex”

What isn’t in the guidance?

The DfE’s guidance focuses on how gender questioning children are treated whilst they are at school or college, it does not cover what children are taught about the topic of gender reassignment.

The Department will include further guidance on this teaching as part of its updated statutory guidance on relationships, sex and health education (RSHE). A draft of the revised RSHE statutory guidance will be subject to a separate consultation.

The Welsh government has not yet published guidance for schools on this matter, but a spokesperson said they are developing guidance at the moment to “support teachers and ensure trans children and young people are fully included in education.”

Five overarching principles to support pupils

The DfE explains that there are several ways in which parents and children might ask a school or college to accommodate a child who is questioning their gender.

Such accommodation may mean a request to take actions such as changing names, uniforms, or using different facilities to help a child appear more like the opposite sex, with the expectation that they will be treated as if they are.

The DfE’s guidance is based on a set of five general principles that schools and colleges can use to frame their response to such requests:

1 Schools and colleges have statutory duties to safeguard and promote the welfare of all children

2 Schools and colleges should be respectful and tolerant places where bullying is never tolerated

3 Parents should not be excluded from decisions taken by a school or college relating to requests for a child to ‘socially transition

4 Schools and colleges have specific legal duties that are framed by a child’s biological sex

5 There is no general duty to allow a child to ‘social transition.’

Responding to requests and engaging parents

The DfE explains that children questioning their gender may make different requests. Schools and colleges should not proactively initiate action towards a child’s social transition.

Action should only be considered after it has been explicitly requested by the child, and the steps set out below have been followed, including engaging with parents.

There could be instances where children disclose first to their teachers that they may be questioning their gender. If there is no change being requested, teachers can listen respectfully about a child’s feelings without automatically alerting parents, but, for safeguarding reasons, cannot promise confidentiality.

If a child requests a change, schools and colleges should make parents aware of the situation and can point them to support outside the school environment (for example, pastoral or medical support) if they request more information.

The only exception to this is the very rare situation where informing parents might raise a significant risk of harm to the child. If, after a period of watchful waiting, the child would still like their request to be granted, schools and colleges, involving their designated safeguarding lead, are advised to take into account the following points:

Handling different information and requests

Registration of name and sex

The draft guidance clarifies that schools and colleges do not have to, and should not, accept all requests for social transition. Where a school considers a request, they should take a very cautious approach, including watchful waiting periods, and ensuring parents are fully consulted before any decision is taken.

From the outset, schools and colleges should also consider the context and seriousness of the request including whether social influence is involved.

Every school must record the name and biological sex of every pupil in the admissions register. It is not accurate to record a male child as female or a female child as male, or to record a male child as a girl or a female child as a boy.

In exceptional cases where a request to social transition is agreed, children, teachers or staff at a school should not be required to adopt the use of preferred pronouns and there must be no sanction, verbal or otherwise. Where a teacher or child does not adopt the new pronouns, they should use the child’s preferred name.

Changing names

Pupils may be allowed to informally change their names if it is in the best interests of the child and parents have been fully consulted. The new name should be communicated to relevant members of the school.

Changing pronouns

Schools can decline a request to change a child’s pronouns and primary school aged children should not have different pronouns to their sex-based pronouns. Schools and colleges should not compel teachers or pupils to use new pronouns, except where necessary to safeguard and all other options have been exhausted, such as addressing the child by their first name.

Single sex spaces

Schools must provide sex-separated toilets for pupils aged 8 or over, and suitable changing accommodation and showers for pupils who are aged 11 years or over at the start of the school year. If a child does not want to use the toilet, changing room or showers designated for their biological sex, schools and colleges may wish to consider alternative toilet, changing room or shower facilities for the child, however schools and colleges cannot allow a child to use a space solely designated for use by the opposite sex.

Boarding and residential accommodation

Sleeping arrangements like dormitories, tents and shared rooms should be sex separated. In the event that a child questioning their gender requests alternative arrangements, these should be considered but should not compromise the safety, comfort, privacy or dignity of the child, or other pupils.

Uniform and clothing

In general, a gender questioning child should be held to the same uniform standard as other children of their sex. When making a decision relating to a child’s request to change a uniform, schools may agree to changes or exceptions to the standard school uniform for most items, but not for swimwear. Many schools already operate a uniform with some flexibility.

Schools will also want to ensure that all relevant staff are aware of any variations in uniform requirements agreed for a pupil, so that they are consistently applied, and that changes are communicated to others where necessary in a respectful way.  A child who wishes to adjust their uniform may simply not wish to conform with expectations related to their sex.

Physical education and sport

Schools and colleges should prioritise the safety and wellbeing of all children when implementing policies. This means for sports, allowing a gender questioning child to participate in sport with the opposite sex will not be appropriate if it risks safety or fairness.

Where a child requests to participate in PE lessons or sporting competitions that are intended for the opposite biological sex, schools and colleges should therefore consider:

The age of the child making the request
How safe it would be to allow mixed-sex participation
How fair it would be to allow mixed-sex participation

Single sex schools

Under the Equality Act, single sex schools can refuse to admit pupils of the other biological sex, regardless of whether the child is questioning their gender. A school cannot, however, refuse to admit a child of the same biological sex on the basis that they are questioning their gender.

If those admissions are exceptional or are comparatively small and limited to particular classes or courses, a school will retain their single sex status within the Act and so will still benefit from the specific exemption from sex discrimination for single sex schools under Schedule 11. For example, a boys’ school which lets girls attend for a particular GCSE course, which is not offered by a school that admits girls, is still regarded as a single-sex school.

What can Edapt do to support?

If you are an existing Edapt subscriber, and you are facing an issue related to your employment as outlined in the guidance, you can contact us for support and advice. We will also be publishing an FAQ article on this topic in the New Year. If you have any questions you would like clarification on just let us know and we will be able to investigate it for you.