For years, schools have been trying to negotiate the complexities of safeguarding and equalities law as it relates to pupils questioning their gender identity, amid a highly contested political environment. Headteachers have been seeking guidance based on the law and clinical evidence to help them act in the best interests of children. But divisions within government have caused unacceptable delays.
A draft version of this guidance was finally published by the government last week and is now subject to a 12-week consultation. The draft could undoubtedly be improved through consultation. But it is an important step towards putting child wellbeing at the heart of schools’ approach.
Labour’s shadow education secretary has welcomed its publication. This suggests a political consensus is emerging – one that prioritises the interests of children, the law and clinical guidance – on the compassionate way to navigate this difficult territory. To date, it has been a toxic debate, pitting people with genuinely held views – including parents, teachers and children – against each other.
Schools have to respond to pupils questioning their gender within the context of their legal obligations. They have a duty to keep all children safe.
Schools are also bound not to discriminate against staff and pupils on the basis of their protected characteristics, including sex, gender reassignment and any protected beliefs, such as the belief that sex cannot be replaced by gender identity. They have specific legal obligations to provide single-sex toilets, showers, changing rooms and sleeping accommodation for children of a certain age, and they must provide equal opportunities for girls in competitive sports. Schools also have legal duties with respect to political impartiality: they should not teach as fact the contested belief system that everyone has a gender ID, or that sex is “assigned at birth”.
Schools also should pay regard to the emerging clinical view of how best to support gender-questioning children. Some argue that a child saying that they believe they have a gender identity different to their sex should be treated in the same way as a disclosure they are gay, because it can only be understood as a sign of a fixed trans identity. But this approach is not based on evidence about what is best for children.
The interim report of the paediatrician Hilary Cass, undertaking a review for the NHS in this area, is clear that a young person’s sense of their gender can be in flux until their early 20s, that gender dysphoria often naturally resolves itself through puberty, and that it can be associated with autism, children processing their same-sex attraction, childhood trauma and discomfort about puberty.
Social transition – where a child is treated as though they are of the opposite sex, including the use of the opposite pronouns – is a psychological intervention.
There is little evidence on its long-term impacts, including the risk that it could make otherwise-transient gender distress last longer. New draft NHS guidance recommends it should be done for adolescents only where it is necessary for the alleviation of clinically significant distress or significant impairment in social functioning and where a young person is able to fully comprehend the implications of social transition.
The new schools guidance says that teachers can listen to pupils questioning their gender without automatically alerting parents. But decisions about confidentiality must be determined by safeguarding law. Rightly so. There need to be good reasons for withholding information from parents, and their disagreement with a teacher or a pupil’s contested belief system about gender identity is not one.
Teachers are not qualified to make decisions about psychological interventions in this area for children and the guidance is right to state that they cannot do so – socially transitioning a child by using different pronouns, or validating their belief they are of the opposite sex, for example – without parental consent in the majority of cases. The law does not require schools to treat gender-questioning children as if they were of the opposite sex; in fact, in some areas it actively prevents them from doing so.
One way in which the guidance could be improved is to spell out exactly how it mediates conflicts and uncertainties within existing law, which remains unsettled in some areas due to a lack of precedent, and how it relates more specifically to clinical insights from the review by Cass, whose final report is due at the beginning of next year. But this draft is a key step towards ensuring that schools are equipped to make evidence-based decisions in the best interests of all pupils.
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