Schools in England could face legal action if they follow new guidance on how to treat transgender children, ministers’ own lawyers have reportedly warned.
Advice issued prior to the education secretary, Gillian Keegan, and the equalities minister, Kemi Badenoch, publishing draft guidance to schools and colleges which said they had no duty to allow students to “socially transition”, warns of significant legal risks if they follow it.
Social transitioning includes people changing their preferred names or pronouns and includes school uniform changes.
According to the trade magazine Schools Week, which said it had received leaked information, the advice from Whitehall lawyers on the drafted guidance, published for public consultation this week, also cites the need to observe the Equality Act.
School leaders responded by saying they were now taking legal advice amid worries that following all aspects of the ministerial advice risked landing them in court.
Geoff Barton, general secretary of the Association of School and College Leaders, said it was “vital that schools and colleges have the assurance that any guidance they are following does not expose them to the risk of legal action”.
A government spokesperson insisted: “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.”
“We do not comment on leaks,” the spokesperson added, saying it would be wrong to interpret partial legal assessments in a draft as a legal assessment of a full and final document.
Kate Egerton, a human rights lawyer at Leigh Day, said: “It is not surprising that the government’s legal advisers have warned there is a high risk of a legal challenge because it is plain to us that the guidance, if published in final form, is probably unlawful under equality and human rights legislation in several places. Following the proposed guidance could put teachers in breach of their legal duties to trans children.”
The new guidance for schools includes a foreword from Keegan and Badenoch, who say that children questioning the way they feel about being a boy or a girl is a “highly sensitive, complex issue, which is still not properly understood”.
They said: “Schools are facing requests 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 guidance states that “there is no general duty to allow a child to ‘socially transition’”. But, according to Schools Week, lawyers warned that there was “a high risk of successful challenge to the guidance on the basis that this statement is misleading/inaccurate”.
The draft guidance says primary school age children should not have pronouns describing them that differed from their “sex-based pronouns” but the legal advice was that this could lead to a “high risk of legal challenge”.
The guidance also says that parents should not be excluded from decisions taken by a school or college relating to requests for a child to “socially transition”. Teachers should make parents aware if their child requests a change – except in the “very rare situation” where parental involvement could raise a “significant risk of harm” to the child, it says.
The guidance also reminds schools and colleges that they have specific legal duties framed by a child’s biological sex, and that schools and colleges should take a cautious approach, with decisions never taken in haste.
“There will be some requests for a type of social transition that will not be compatible with a school’s legal duties, schools must abide by this,” it states. It acknowledges that the guidance “covers areas that remain untested in the courts”.
School and college leaders are told that “whilst it is not possible for the guidance to state a definitive legal position on all areas, the guidance seeks to provide clear advice to schools and colleges to help inform their decisions”.
• The headline of this article was amended on 21 December 2023. An earlier version referred to schools in the “UK”; as the article itself indicates, the guidance applies to schools in England.
