The government is considering issuing guidance to single-sex schools in England saying that they cannot be legally obliged to take transgender pupils, as part of advice to be released this term.
The advice, first reported by the Telegraph, is also likely to include direction for schools to inform parents about children questioning gender identity.
The prime minister, Rishi Sunak, is understood to be particularly keen that the rules clarify in detail that parental consent is paramount in the way that schools approach pupils questioning their gender identity.
The advice, which is being drawn up by the education secretary, Gillian Keegan, and Kemi Badenoch, who holds the equalities portfolio, comes after the Girls’ Day School Trust said last year it would only admit pupils based on sex, rather than gender.
However, schools have sought legal advice about enforcing the rule amid concerns it could breach the Equality Act.
A government source said the guidance being drafted was hoped to clarify the legal situation for schools on admitting transgender pupils and on using preferred pronouns. A draft version of the guidance is expected to be put out to consultation within weeks.
The guidance is expected to say that schools would not be breaching the Equality Act 2010 if they did not accommodate transgender pupils, although no pupils would be required to leave a school if they started questioning their gender identity.
This would mean that girls’ schools would be able to reject applications from pupils who identify as female but whose legal sex is male, and vice versa for boys’ schools.
The changes are expected to be announced before the summer recess, Keegan told Times Radio on Monday. “We need to be sensitive obviously to children but more importantly make sure parents are fully involved as well,” she said.
“We need to look after the wellbeing of all pupils. In that case, the wellbeing of girls is also very important and ‘good morning, girls’ is absolutely fine to say in a girls’ school to a girls’ class. We have to be sensible and have a big dose of common sense here.
“We can’t mix up sex and gender. We’ve seen what happened in Scotland when it got that round the wrong way. And really our guidance needs to provide safeguarding for all children and make sure that, you know, it does cover all children’s rights as well.”
The new advice comes amid changes that could be made to the Equality Act, backed by the Equality and Human Rights Commission (EHRC) but condemned by LGBTQ+ groups.
Badenoch is considering changing the Equality Act to allow organisations to bar trans women from single-sex spaces and events, including hospital wards and sports. The change by the equalities secretary would redefine sex in the 2010 act to specifically refer to legal protections for “biological sex” – the sex assigned at birth.
The EHRC, the equalities watchdog, said the new definition would make it possible to exclude trans people from same-sex spaces even if they hold a gender recognition certificate (GRC).
Stonewall said the EHRC’s letter in support of the change offered “no substantive evidence of demand” for it, and the group did “not see a world where cis women are desperate to exclude trans women from their spaces”.
