Transgender Questioning School Children – Your Questions Answered

What statistics are available for gender questioning children in schools?

Policy Exchange “is the UK’s leading think tank.” It is an educational charity with the objective of developing and promoting new policy ideas which provide improved “public services, a stronger society and a more dynamic society.”

On 30 March 2023 Policy Exchange published “Asleep at the Wheel”, described as “An Examination  of Gender and Safeguarding in Schools.”

The report was based on research which revealed “there to be a safeguarding blind spot when it comes to the issue of sex and gender.” Responses received from Freedom of Information (FOI) requests, to randomly selected maintained secondary schools and academies in England, illustrated a significant number of “schools are disregarding basic safeguarding protocol regarding gender – distressed children and their peers.”   The replies to FOI requests illustrated the following:-

• Only 28% of secondary schools are reliably informing parents as soon as a child discloses feelings of gender distress.
• 33% of secondary schools did not say they would inform their Designated Safeguarding Lead or medical practitioner when a child disclosed gender distress.
• 40% of secondary schools operate policies of gender self identification.
• 69% of secondary schools required other children to affirm a gender distressed child’s new identity.
• 60% of secondary schools are allowing children to participate in sports of the opposite sex.

When did the Government promise guidance on transgender issues in schools?

What is the guidance for addressing transgender issues in Welsh Schools?

The Welsh Government stated that draft guidance would be published for a full 12 week public consultation in the Autumn of 2023. Finalised guidance for children and schools in Wales would be published in 2024.

What was the guidance from Government on transgender issues in schools, before December 2023?

Prior to 2023, the Government had not issued guidance, in a single document, to schools on the issue of addressing transgender matters. Before this time, schools in England were encouraged to create inclusive environments that respected and supported the rights of transgender students. Related to transgender issues, the Department for Education (DfE) provided guidance on promoting equality in schools and tackling discrimination in schools. This guidance emphasised the importance of creating a safe and inclusive school environment for all students, including those who identified transgender.

What are the practical challenges for schools arising from gender questioning pupils?

The challenges facing schools by gender questioning pupils are as follows:-

• Names and pronouns
• Pupil registration
• Parental involvement
• School uniform
• Toilet facilities
• Changing rooms
• Sports
• Residential trips
• Work experience

What guidance did the Government issue on gender questioning pupils in 2023?

On the 19 December 2023, the Government issued guidance on children who are looking to socially transition, or change gender identification. This guidance is titled, “Gender Questioning Children: Non statutory guidance for schools and colleges in England.”

In a sentence what approach should schools take to gender questioning children?

The guidance states, “schools and colleges should take a cautious approach and that decisions should never be taken in haste or without the involvement of parents.”

Are there Human Rights issues arising from children who question their gender identity?

In addition to the guidance issued by Government in December 2023 on “Gender Questioning Children”, schools must be mindful of other guidance and laws which impact upon those children questioning  their identity and wishing to explore transgender issues.

Schools and colleges must have regard to the fact they have a legal duty to safeguard and promote the welfare of all children under the age of 18 in schools and colleges. Under the Human Rights Act it is unlawful for schools and colleges that are publicly funded to act in a way that is incompatible with Convention Rights.

Furthermore, schools and colleges must be alive to potential arguments of sex discrimination. There is a public sector duty on schools and colleges to have regard to the need to eliminate unlawful discrimination, victimisation and harassment. This duty does not apply to independent schools that are not academies.

Does the Gender Questioning Children guidance from the Government affect all schools in England?

The guidance applies to all schools in England, meaning it applies to:-

• Governing bodies of maintained schools and non maintained special schools.
• Trustees or directors of academies and free schools.
• Proprietors of independent schools.
• Management committees of pupil referral units.
• Dioceses and other faith representatives involved in the management and supervision of schools.

What is Gender Identity?

The Government guidance on “Gender Questioning Children” defines gender identity as a sense of a person has of their own gender, whether male, female, or other category. This may or not be the same as their biological sex. Notably the Government guidance states that gender identity is a contested belief.

What is Gender Questioning?

The Government guidance on “Gender Questioning Children” defines gender questioning as a broad term to describe children who are asking questions about their biological sex and gender identity.

What is Gender distressed or confused?

The Government guidance on “Gender Questioning Children” defines gender distressed or confused as a way of describing distress or confusion that may occur connected to a child’s understanding of their biological sex, associated attributes and behaviours, where a formal diagnosis has not been made.

What is Social transition?

The Government guidance on “Gender Questioning Children” defines social transition as the process by which people change names, pronouns, clothing, or use different facilities from those provided for their biological sex

What is Gender Incongruence?

The Government guidance on “Gender Questioning Children” states gender incongruence is a medical term for marked and persistent incongruence between a person’s experienced gender identity and their biological sex.

What is Gender Dysphoria?

The Government guidance on “Gender Questioning Children” defines gender dysphoria as being similar to gender incongruence, or at least 6 months duration. The condition is associated with significant distress or impairment in social or other important areas of functioning.

Who are parents?

The Government guidance on “Gender Questioning Children” defines parents as any adult with parental or caring responsibilities for a child.

Are schools expected to actively support a request from a child to change gender?

No.

Schools and colleges should not proactively initiate action towards a child’s social transition. Action should only be taken after the request has been explicitly made and then, only after engaging with parents.

Do schools have to tell parents that their child has questioned their gender?

Yes.

If a child requests a change of gender, schools should make parents aware.

If the child is committed to proceeding with some form of social transition, what should a school do?

After a period of “watchful waiting”, i.e. allowing time to determine if a child’s questioning remains consistent, schools are advised by the government guidance to take into account a number of issues:-

• safeguarding obligations.
• the views of the parents of the child.
• the age of the child.
• clinical information that may be available.
• seriousness and context of the request.
• long term and short term impact on the child.
• impact on other pupils.

If a child asks to be called by a different name, does the school have to agree?

Schools may allow a child to change their informal (“known as”) name if they believe it is in the best interests of the child to do so.

Can a child insist upon others using a different pronoun about them?

Primary school children should not have different pronouns to their sex based pronouns.

For secondary school children, schools do not need to specify pronouns to be used about each student and can decline a request to change a child’s pronouns Where a school or college considers a child’s request to change their pronoun, the school or college should consult the child’s parents. The school should only agree to a change of pronouns if they are confident that the benefit to the individual child outweighs the impact on the school community.

Can a school child who is socially transitioning use toilets, showers and changing rooms of the opposite biological sex?

Responding to a request to support any degree of social transition must not include access to the toilets, showers or changing rooms of the opposite sex. All children should use the toilets, showers and changing facilities designated for their biological sex unless it will cause distress for them to do so. In these instances, schools should seek to find alternative arrangements.

Is a child entitled to wear the school uniform of the opposite sex?

A child who is gender questioning should, in general, be required to wear the same uniform as other children of their sex. In those situations where the request from a child to change school uniform may be accommodated, decisions should only be made following consultation with a child’s parents.

Can a child participate in physical education (PE) lessons or sporting events, including competitions, that are intended for the opposite sex?

Where a child wants to participate in PE or sporting competitions that are intended for the opposite sex, schools should consider:-

• the age of the child making the request
• how safe it would be to allow mixed sex participation
• how fair it would be to allow mixed sex participation

How does the guidance on gender questioning children impact on single sex schools?

Single sex schools can refuse to admit pupils of the other biological sex, regardless of whether the child is questioning their gender. A school cannot, in contrast, refuse to admit a child of the same biological sex on the basis they are questioning their gender.

What will happen when the Government consultation on “Guidance for Schools and Colleges: Gender Questioning Children” closes on the 12 March 2024?

We do not know what will happen when the Government consultation on “Guidance for Schools and Colleges: Gender Questioning Children” closes on the 12 March 2024. It is possible the guidance will be update or, perhaps remain as first published in December 2023.

We anticipate that the guidance will be refined and updated to reflect the views of those who have responded to the consultation document. It is possible that the status of the guidance will be uprated so that it has statutory force. In the meantime, schools and colleges in England now have, what the Government refers to as, “practical advice”.

Is the guidance for schools and colleges on Gender Questioning Children legally watertight?

According to the Guardian and the BBC, it is reported that the Government’s own lawyers warned schools could face legal action if they follow this guidance.

It is reported that Government lawyers advised Ministers there is a risk to a successful challenge to the guidance in respect of primary school age children not being able to change pronouns. The Government lawyers have also warned, according to media reports, that the statement in the guidance that “there is no general duty to allow a child to socially transition” is misleading.

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Get confidential advice and support from our transgender questioning solicitors.

The information given here is intended for general information purposes only and should not be taken as legal advice.

For expert advice and support talk to our solicitors about your rights and those of your child in respect of gender questioning.

Talk to our specialist education solicitors about how schools are required to consider requests to socially transition.

Don’t hesitate to get in touch with Kinjal or Rachael, our education law legal administrators, on 01895 207 961, or by email at educationteam@ibblaw.co.uk. They can arrange a fixed fee consultation and send you a link to our online booking suite, where you can choose a day and time most convenient for your meeting with the specialist education solicitor.