A new report into the legal minefield facing schools over gender identity says allowing schoolboys into girls’ toilets and changing rooms could break the law.
Gender-critical campaign group Sex Matters also found that socially transitioning children in the classroom is not compatible with schools’ statutory responsibilities.
Its findings come after repeated delays in the government’s promise to publish long-awaited trans guidance for schools over legal concerns.
Last month, education secretary Gillian Keegan stressed that the overdue guidance to help teachers of children questioning their gender will only be “non-statutory,” rather than enshrined in law.
Ms. Keegan also published a ministerial statement urging teachers to exercise “extreme caution” in the meantime over pupils who choose to self-identify as a different gender.
Socially Transitioning
The Sex Matters report analysed more than 20 laws and regulations, including the Education Act, the School Standards and Framework Act, Teachers’ Standards, the National Curriculum and statutory guidance on safeguarding.The group consulted a dozen lawyers, educational psychologists, headteachers and special educational needs experts and concluded that there is no obligation for single-sex schools to admit children of the opposite sex.
It also claimed that schools are legally obliged to recognise sex in a wide range of areas, including registration, data protection, toilet and changing facilities, and behaviour policies.
It warned that it is crucial that every teacher knows each pupil’s sex in order to fulfil their duty of care and safeguarding.
The report said: “Schools may need to be sensitive to any psychological distress that telling the truth about a child’s sex might cause to a gender-distressed child. But that distress cannot override obligations the school has to that child, and to that child’s peers, to maintain safeguarding and clear sex-based rules.”
In terms of children who are socially transitioning, the report said: “Social transition—treating a boy as if he is a girl, or a girl as if she is a boy—is not compatible with schools’ statutory responsibilities, and the Department for Education’s guidance should reflect this.”
It also said that teachers should not keep information on a child who has said they are socially transitioning from parents or guardians.
It stated: “Lying to children, keeping secrets with them or waiving rules that exist for their protection is not consistent with the best interests of the child.
“Parents should not generally be excluded from information about their child.”
Lawful Sex Discrimination
In terms of children who transition while attending same-sex schools, the report found that there was “very limited flexibility”.“There is no provision to admit a child of the opposite sex to a single-sex school and record (and treat) the child as being the sex that they are not,” the report states.
“Single-sex schools have admissions rules that admit only male children or only female children.”
The report authors said this was “a lawful form of sex discrimination” covered in the Equality Act.
The act allows single-sex schools to admit children of the opposite sex exceptionally without losing their status as a single-sex school.
“This does not mean that the law anticipates admitting children of the opposite sex and treating them as if they were the same sex,” it said.
For state schools, admissions are governed by the Admissions Code issued under Section 84 of the School Standards and Framework Act 1998.
The code requires that places are allocated in an open and fair way rather than by ad hoc selection, the report found.
“A maintained school that admits a child of the opposite sex on an ad-hoc basis (allocating a space for a girl to a boy or vice versa) is likely to be in breach of the Admissions Code,” it said.
Single Sex Toilets
Executive director of Sex Matters Maya Forstater, said schools that allow boys to use girls’ toilets and changing rooms, and vice versa, are failing in their duty of care, of which they have a legal obligation to meet.“It all comes under schools’ duty of care to fence the pond off, fence the stairs off, make sure there are no sharp railings they can fall onto off the climbing frame,” she said. “You do all of these things to keep children safe.”
Schools are required by law to have single-sex toilets from the age of eight and single-sex changing rooms or fully enclosed cubicles from the age of 11.
The group’s legal review has been sent to the education secretary and other ministers.
It followed reports that the attorney-general warned Prime Minister Rishi Sunak that plans to ban schoolchildren from socially transitioning without parental consent, would be unlawful.
The Association of School and College Leaders Union reacted with disappointment at the delay, saying the lack of guidance is “frustrating” as teachers are having to navigate the “complex and sensitive subject” on their own.
In March, Mr. Sunak pledged that guidance for schools on transgender issues would be published “for the summer term.”
He has said it is “important” to take the time to get the guidance on transgender pupils right as it is a “complex and sensitive issue.”
Biological Sex
Responding to the Sex Matters report, Conservative MP Miriam Cates told the Telegraph that it was the responsibility of the education secretary to provide clear guidance to teachers clarifying their safeguarding duties to all children, including those “questioning their gender” especially “given the unsafe and potentially unlawful ‘self-ID’ practices that are now prevalent in many schools.”However, Rachel Dee, president of the Beaumont Society, a charity that supports trans people, told the newspaper: “Schools are waiting for the trans guidance from the Government, and it seems to be taking a long time.
“I can see the difficulties in allowing boys into girls’ toilets. It could cause some serious problems and disruption.
“I would think it’s up to the individual schools to decide what to do, and schools should be consulting parents regarding policies involving trans pupils because parents need to be part of the decision-making.”
Ms. Dee said the government should “hurry up and pull their finger out and get this stuff sorted.”
According to research conducted by YouGov in April 2022, 79 per cent of teachers say their schools have pupils who identify as trans or non-binary, 81 per cent say their schools would use chosen pronouns, while 19 per cent say their schools would also allow pupils to use the facilities of their “gender identity” rather than their sex.
Asked about the delayed schools guidance, a government spokesperson said: “The Education Secretary is working closely with the minister for women and equalities to provide guidance to schools and colleges.
“We’ve been repeatedly clear about the importance of biological sex and we advise that schools and colleges proceed with caution—prioritising the safeguarding and wellbeing of all children and involving parents in decisions relating to their child.
“Given the complexity and sensitivity of the issue, we’re taking the time to make sure any guidance we provide is as clear as possible.”
