DfE publishes draft transgender guidance for schools

The government has published long-awaited draft transgender guidance, which sets out how schools should respond to gender-questioning pupils.

The draft guidance has been published alongside a consultation on the proposals. The guidance is non-statutory, meaning schools will not have a legal duty to follow it.

The Department for Education said it had adopted a “parent-first approach”, and that the guidance would advise schools to involve parents in decisions affecting their children.

Education secretary Gillian Keegan said the guidance “puts the best interests of all children first, removing any confusion about the protections that must be in place for biological sex and single-sex spaces”.

Here’s what the draft guidance states. It won’t come into effect until after the consultation, and may be changed at that point.

1. Five ‘overarching’ principles

The guidance focuses on how schools should handle requests for “social transitioning”.

The DfE defines this as “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 sets out five “overarching principles” for schools to frame responses to requests for social transitioning. These are as follows…

• Schools and colleges have statutory duties to safeguard and promote the welfare of all children
• Schools and colleges should be respectful and tolerant places where bullying is never tolerated
• Parents should not be excluded from decisions taken by a school or college relating to requests for a child to ‘socially transition’
• Schools and colleges have specific legal duties that are framed by a child’s biological sex
• There is no general duty to allow a child to ‘social transition’

2. When should schools involve parents?

The guidance states that where a child requests action from a school in relation to “any degree” of social transition, schools should speak to parents “as a matter of priority” and encourage the child to speak to their parents.

The DfE would “expect parental consent to be required in the vast majority of cases”.

But in “exceptionally rare circumstances”, where a school believes involving parents could put a child at “significant risk” of harm, schools do not have to inform them.

If no change is being requested, the DfE says teachers can “listen respectfully” to a child’s feelings without automatically telling their parents. But for safeguarding reasons, they cannot “promise confidentiality”.

3. What to do about pronouns

The draft guidance states that primary children “should not have different pronouns to their sex-based pronouns used about them”.

For older children, schools  should only agree “if they are confident that the benefit to the individual child outweighs the impact on the school community”.

As a result, the government says it expects “there will be very few occasions in which a school or college will be able to agree to a change of pronouns”.

4. Don’t ‘compel’ others to use pronouns

In those instances where a change of pronouns is agreed, “no teacher or pupil should be compelled to use these pronouns”.

Schools should also not prevent teachers from referring to children collectively as ‘girls’ or ‘boys’, even in the presence of a child who has been allowed to change their pronouns.

Schools are also told they should “exhaust all other options”, such as using first names, “to avoid requiring individuals having to use preferred pronouns”.

The guidance adds that no child should be sanctioned for “honest mistakes” when adapting to a pupil’s preferred name or pronouns.

5. Take a ‘cautious approach’

The guidance warns “a cautious approach” should be taken that complies with legal duties, because there isn’t “definitive evidence” of the long and short-term impact of changes on children.

Requests from younger children in primary schools should be treated with “greater caution” because they are “more vulnerable” and “less able to articulate their feelings”.

The guidance states that schools have a legal duty to record a child’s sex accurately, as well as their legal name in registers.

Government also expects schools to make “all relevant staff” aware of the biological sex of a child questioning their gender.

6. Wait before considering a request

Schools are also told to allow for “watchful waiting” before considering a request, “to ensure it is a sustained and properly thought-through decision”.

They should consider if the child has made “similar requests” before, and seek to understand factors that may have influenced the child, such as their “peers or social media”.

The guidance also asks schools to consider whether a child feels “pressured” to identify differently because they “simply do not align” with stereotypes associated with their sex.

Other factors listed for consideration are whether input from a special educational needs coordinator is “appropriate”, or if there is an “interaction” with the child’s sexual orientation.

7. Factoring in other pupils and staff

When considering requests for social transitioning, schools are told to consider the impact on other pupils, including safeguarding concerns.

Schools may conclude that the impact on the school community “is such that it may not be possible to agree to support a request”.

If a change has been agreed, schools should communicate this to other pupils and staff “where it is necessary and proportionate to do so”.

But the guidance adds that “this should be done sensitively, without implying contested views around gender identity are fact”.

8. What happens with single-sex spaces?

Responding to a request to support any degree of social transition “must not” include allowing access to single-sex spaces, the guidance states.

“All children” should use the toilets, showers and changing facilities designated for their biological sex “unless it will cause them distress to do so”, the DfE said.

If a school wishes to offer a pupil access to an alternative toilet facility, they should be secured from the inside and for use by one child at a time, including for hand washing.

Alternative changing rooms could include a facility to be used by one child at a time and lockable from the inside.

9. Clear rules needed for PE

The government says a “more relaxed approach” for mixed-sex participation in sports can be taken for early primary age children.

But schools should adopt “clear rules which mandate separate-sex participation” for all sports “where physical differences” between sexes “threatens the safety of children”.

And even in sports where “safety is not risked”, such as competitive sports, schools should be aware that without separate sex participation, “it is unlikely that they will be offering equal opportunities”.

10. 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, the guidance states.

But a school also cannot refuse to admit a child of the same biological sex on the basis that they are questioning their gender.

However, guidance states the equality act does not prevent single-sex schools from admitting pupils of the opposite biological sex if their admission is “exceptional” or their numbers are comparatively small and limited to particular classes or courses.