Teaching unions and school leaders in England are calling for an overhaul of ministers’ proposed guidance on the treatment of transgender pupils, saying the current version is incomplete and vulnerable to legal challenges.
The unions and other organisations, including the campaigning group Sex Matters, are also critical of the guidance proposals for how schools should respond to children wanting to socially transition to a different gender by changing their names or uniform.
In their responses to the government’s consultation, which closed on Tuesday, the Association of School and College Leaders (ASCL) and the NASUWT teachers union highlighted their concerns that the government had ignored legal advice that schools could face a “high risk” of losing court cases if they follow the new guidance.
Leaked legal advice obtained by Schools Week revealed that lawyers at the Department for Education said parts of the guidance would fail to stand up to legal challenges. But the passages were still included in the published draft and approved by No 10 and equalities minister Kemi Badenoch.
Julie McCulloch, director of policy at the ASCL, said: “School and college leaders have been waiting for this guidance for several years now. While its publication is helpful in many ways, we also have a number of concerns.
“One of the reasons why this guidance is so necessary, along with supporting schools in taking compassionate, evidence-informed decisions which keep all their pupils safe, is to protect school and college leaders from increasingly vitriolic and threatening challenges in relation to the decisions they make.
“The very least we would expect from any government guidance is that it is legally sound.
“If the government cannot provide assurance that schools and colleges will not be leaving themselves open to legal challenge by following this guidance, then the government itself must commit to taking on any legal challenges that arise against schools.”
Patrick Roach, the general secretary of NASUWT, said schools desperately needed new guidance, but said the current draft should be withdrawn and replaced with “sensible and credible interpretations” of schools’ legal duties.
Roach said: “Teachers and headteachers need to be confident that following guidance from the government will not conflict with other legal and statutory obligations, such as the Equality Act, or Keeping Children Safe in Education safeguarding laws.
“In our view, the draft guidance fails to provide effective support on practical issues that schools and colleges may face, including working with children who have already transitioned with the support of their families.
“It also fails to address the issue that teachers, schools and colleges rarely have access to adequate support on these matters from external agencies.”
Both unions said the advice that schools should adopt a policy of “watchful waiting”, in response to a pupil’s request to socially transition, was vague.
NASUWT’s response said the phrase gave “little practical assistance”, adding: “Specifically, the guidance does not set out what schools and colleges should watch for, nor does it help them to determine a reasonable duration within which they should watch and wait in particular cases.”
Sex Matters, while supportive of the guidance overall, also criticised the lack of detailed guidance being offered to schools regarding issues such as social transitioning.
“Schools are not clinics, and teachers are not clinicians. They cannot undertake watchful waiting … or involve other children in ‘providing treatment’ for gender dysphoria,” its response to the consultation stated.
Sex Matters also called for the government to provide legal analysis highlighting “which statutory requirements underpin the guidance and why it is consistent with the Equality Act”, in light of likely court challenges.
