If further proof was needed that politicians and teachers are not the greatest of friends, then the publication of draft guidance the week before Christmas, after the longest and darkest term in the academic calendar sealed the deal. This is the waited for, and hotly debated guidance on what schools are required to do when a child or young person expresses their wish to change their gender assigned at birth. Schools have found themselves thrust into the front line of the culture wars as they grapple with issues such as: are single-sex toilets and changing facilities still permitted? Can children only play sports with other children who share the same birth gender? At what point are parents to be informed of any child’s wish to change their gender assigned at birth? 

What is the status of the guidance?

The draft non-statutory guidance is open to consultation for a period of nine weeks until 12 March 2024 and the Government is asking for views and input. We imagine that final guidance will be published sometime after that although the announcement of a general election may impact timings. There is some comfort for head teachers, who will not have to implement any new guidelines in time for January 2024.

What’s in the draft guidance?

• Five general principles - these are outlined at the start and provide the framework for the rest of the detail within the guidance. They also give an indication of the DfE’s tone and direction of travel when it comes to advising schools on how they should be responding to children who wish to change their gender identity and the requests that accompany these decisions. It refers to and takes themes and conclusions from the Cass Review.

1. Schools and colleges have statutory duties to safeguard and promote the welfare of all children.
2. Schools and colleges should be respectful and tolerant places where bullying is never tolerated.
3. Parents should not be excluded from decisions taken by a school or college relating to requests for a child to ‘socially transition’ i.e. wear a different uniform/be called by a different name and/or pronoun etc.
4. Schools and colleges have specific legal duties that are framed by a child’s biological sex.
5. There is no general duty to allow a child to ‘social transition’.

The draft guidance then goes on to outline issues relating to handling requests and engaging with parents and includes guidance on registration of name and sex, changing names, the use of pronouns, single-sex spaces, uniforms, physical education and sports and single-sex schools. 

For the purpose of this blog and brevity, we would highlight the following key themes to look out for (not an exhaustive list):

• Social transition is not a neutral act and hence a cautious approach is required - this sense of caution and a weighing up of the needs of all members of the school community and other safeguarding and statutory duties is a strong theme. There is little doubt that the DfE is anxious that schools should not take the decision to affirm a pupil’s change of gender identity or request to socially transition lightly or without careful thought. The guidance is clear that action should only be taken towards social transition which has been explicitly requested by the child; schools and colleges should not proactively initiate such actions. 
• Some forms of social transitioning will not be compatible with a school’s statutory responsibilities - this relates to issues such as single-sex changing rooms and bathroom facilities. The guidance is clear noting that ‘responding to a request to support any degree of social transition must not include allowing access to these [single sex] spaces’. Where a child would feel distressed using the facilities aligned to their biological sex then alternative arrangements should be found whilst maintaining single-sex spaces. 
• Collaboration with parents - schools will be required to inform parents if a child or young person seeks to make a specific change related to their social transition. The draft guidance clearly states that ‘it is important that the views of the child’s parents should carry great weight and be properly considered’. However, there will be exceptions for safeguarding issues where informing the parents might cause significant harm to the child or young person concerned.
• Pronouns - the guidance is clear that primary school aged children should not have different pronouns to their sex-based pronouns. For older children, a school or college should consider a request to change pronouns and consult with the child’s parents and consider other factors prior to using a different pronoun. However, the guidance notes that ‘it is expected that there will be very few occasions in which a school or college will be able to agree to a change of pronouns’. When this does happen, the guidance notes that no teacher or peer would be compelled to use the pronoun and there should be no disciplinary sanction for an 'honest mistake' when misgendering a pupil.
• Dealing with younger pupils - the guidance notes the importance of considering the age of any child making a request to social transition. Such requests should be treated with the utmost caution and with parental input (except where safeguarding issues are relevant). We note in the section relating to pronouns the distinction between how primary and secondary aged children may be treated.

What now?

We would advise you to read the guidance and note the following;

• What, if any, changes will need to be made to school policies and procedures – does the guidance differ greatly either in tone or detail from your existing documentation?
• What training will need to be updated for staff and when will it be rolled out?
• What, if any, changes will need to be made in information given to children? We understand that the Government is planning to issue updated guidance on relationships, sex and health education advice and will issue it next year. Apparently, it is seeking to issue materials that are factual and do not present contested views. Given the level of controversy on transgender issues, they may struggle in that regard!
• Consider whether you would like to respond to the consultation and try to shape the eventual guidance.

We will continue to provide updates on this guidance when we have further information. In the meantime, please do not hesitate to contact us should you have any further questions.