Telegraph reports schools face legal action

PerfectParrot Thank you.
So is the CPS/Stonewall position is that their disputed interpretation of the Equality Act trumps the two pieces of guidance as well as Safeguarding principles which are sex-based?

Even if a child can be proven to have the protected characteristic of 'gender reassignment' as the EQA states, that still would need pushing through the courts again to decide whether this characteristic outweighs every other protected characteristic, or means that someone male must in every circumstance without exception be permitted to use female spaces even when this disadvantages and excludes female people, and defeats the entire purpose of having female spaces. Because that's where the CPS seem to have decided the law stands.

I don't remember voting in Stonewall as the ruling party.

R0wantrees, AFAIK that is still in place. However, CPS seem to be saying that in order to satisfy that EA, a trans child has the protected characteristic "gender reassignment" should be treated as though they are their acquired gender. So schools must have sex-segregated facilities, but trans students must be allowed to use the facilities for their acquired gender.

I disagree with the CPS interpretation - I do not believe that the EA ever considered the notion of a child having the protected characteristic of "gender reassignment". But until it is tested in the courts (probably right up to the supreme court) we actually can't know for sure.

SecEd School toilets: Guidance and regulations
Written by: Paul Thorn Published: 15 November 2017
(extract)
"The correct directives to follow are actually listed in the DfE’s 2015 document, Advice on Standards for School Premises (see further information). This supersedes the outdated advice that still gets mooted around.

The updated regulations allow for more freedom, empowering schools to take greater control in how buildings are laid out. Regulation 23A in the DfE’s 2015 guidance simply outlines:

Handwash amenities must be located within close proximity to every toilet, while it’s imperative that washrooms are sufficiently well lit and properly ventilated.
Toilet blocks have to be easy to access for students and allow for passive supervision by staff, without infringing on privacy.
Separate blocks have to be available for girls and boys aged eight and above, except in the case of individual cubicles that are intended for the sole use of one child at a time.
For secondary school children, appropriate changing rooms and showers must be available for PE lessons.
Staff facilities should be separate from those used by students, although disabled toilets are allowed to be accessed by both students, staff, visitors and volunteers.
The key guideline to have in mind, however, is “British Standard 6465-1: 2006+A12009”, which states the appropriate number of units for secondary school children. This details:

Male toilet and urinals: one per 20 students while urinals should constitute no more than two-thirds of the boys’ fixtures.
Female toilets: one per 20 students.
Handwash basins: one per toilet/urinal where there are three or fewer fixtures. Two per three toilets/urinals where there are three or more fixtures. Toilets and urinals should be near to a handwash basin." (continues)
www.sec-ed.co.uk/best-practice/school-toilets-guidance-and-regulations/

Have the two policy documents referred to been superceeded?

I queried the law on this on another thread and someone brought up Building Regulations that require separate toilet facilities for boys and girls aged 8 and over, unless a separate lockable room (cubicle presumably not good enough).

How does this square with that?

God knows. It's as if existing guidelines and laws can be ignored if they are inconvenient to certain groups.

I suppose I get frustrated when I see patently incorrect statements about what the law IS. (And ‘guidance’ that is built on myth or misinterpretation or wishful thinking.)

RobinMoiraWhite Couldn't agree more. Have you taken Stonewall to task on the the untruths they are propagating about the Equality Act?

I can't understand why the CPS is giving advice about discrimination law in the first place. It is civil, not criminal law so why is it a matter for them?

I believe the EHRC have corrected their own guidance which now correctly references the single-sex exemptions and makes clear that the law does not give trans people the unqualified right to access the facilities of their choice.

The CPS has no fucking idea what the law actually says! Do something, Government! They're deliberately lying about the content of laws you passed! Fucking hell!!!!!

So, my first question about the Equality Act was the gender reassignment one.

Second question is the single-sex provisions. The Equality Act says it's fine to have single-sex spaces that exclude the opposite sex if it is a "proportionate means to achieve a legitimate aim". (Sex refers here to biological sex, so wouldn't include a teenager identifying as the opposite sex.)

Now it seems to me that protecting girls from being harassed by boys in changing rooms, toilets etc is a legitimate aim. Not only is it a legitimate aim it is - surely - a legal requirement. Schools can fail an Ofsted inspection if their safeguarding is inadequate. So protecting girls from harm must, I'd have thought, override the desire of trans children to use the toilet of the sex they identify with.

And as others have said, schools are legally obliged to provide sex-segregated toilets from the age of 8.

So the question for Robin is: have I misunderstood? If so, can you tell me where I'm going wrong?

...Building Regulations that require separate toilet facilities for boys and girls aged 8 and over, unless a separate lockable room[...] How does this square with that?

That same requirement is in the building reg guidance for workplaces. Yet as part of the EA, an example is given that an employer must allow somebody with the protected characteristic of "gender reassignment" to use the facilities for their chosen gender. It could be argued that there's no reason it should be different for children in school.

Personally, I'd argue that children and teens deserve special protections for their dignity and privacy, and that a "third space" for those who are questioning their gender identity would be a proportionate response. Others disagree though, and it hasn't (afaik) been tested in law so there is no definitive answer.

It's worth remembering that this discussion also includes changing rooms. And many (likely to be a majority) of school and many sports changing rooms are all open plan. So the 13 year old changing for swimming (an act that usually involves stripping naked) is forced to undress in front of any adolescent boy who self identifies as a girl - if it's the mixed age swimming team the 12 year old girl may be undressing with the 17 year old male identifying as a female. Evidently there is no one in the CPS who has a problem with this?

...So now we have "Gillick Incompetence."

Oh goody.

Mockers No need to worry about Gillick Competence (my bold):

The policy of Rotherham NHS Foundation Trust states: “Where appropriate the wishes of the parents must be considered, but in the case of young people their preference should prevail.” It adds: “In some instances, parents or those with parental responsibility may have a view that is not consistent with the child’s view. If possible, the child’s preference should prevail even if the child is not Gillick competent.”

From this Telegraph article

Not sure if this can be said on here, but I agree there is no such thing as trans child

I said that and I'm still here.

A Transman or woman in UK law is defined by the 2010 Statute as someone with a GRC or possibly in the process of acquiring one.

Not sure if this can be said on here, but I agree there is no such thing as trans child-only confused children whom adults are telling them they are trans.....this is the huge elephant in the room that needs to be bought into the open-otherwise the next generation of potentially gay & lesbian kids will be surgically & medically altered unnecessarily.

a trans child under the age of 16 wouldn't fall into that category because technically they are too young to have started the process of reassignment. I realise that reassignment can also include "intending to reassign" but can a child under 16 rationally be said to be "intending to reassign"?

Intending, or beginning the process?

Possible Gillick Competence question here, or alternatively it's contractual and so not available to minors.

Doesn't the law also say that schools have to provide single-sex facilities for children over the age of eight?

Robin - thanks for joining us on here. It's good to have someone with legal expertise on here.

I'm not a lawyer, and have a question. My understanding based on reading about this is that gender identity isn't a protected characteristic under the Equality Act.

Gender reassignment is, however, protected, but my understanding again is that a trans child under the age of 16 wouldn't fall into that category because technically they are too young to have started the process of reassignment. I realise that reassignment can also include "intending to reassign" but can a child under 16 rationally be said to be "intending to reassign"? Do we have any evidence yet for how this has been interpreted in the courts in relation to under-16s?

I’ve been visiting secondary schools as have a y6 child and a brand new school has unisex toilets. It is a floor to ceiling individual cubicle that can be seen from corridor which I think is brilliant. My only complaint about that was the sinks are outside so as a girl wanting to clean up during period it would be better to have an all in one unit with sink in.

I do feel that trans people should be able to use what they identify with however there has to be something to protect the non trans people who feel uncomfortable with someone who on the outside looks like a member of the opposite sex.

I work in a school and so much drama happens in the toilet at lunch times that some children make themselves ill by not drinking or holding onto their wee all day which is not healthy at all.

Until purpose built facilities that offer privacy for all then sadly it needs to be the disabled toilets for the mean time

This is a deliberate and provocative push from the current right wing government which is designed to provoke a backlash towards the entire LGB community

I don’t think the LGB alliance, founders of Stonewall - Simon Fanshawe etc and those concerned about the erasure of lesbians/gays, the cotton/boxing ceiling will agree with you.

Robin, some of the posters in this forum are also legal experts. We are not all 1950s housewives, who should really be swapping recipes and talking about brands of nappies.

Personally I think that as women one of our major concerns is the wellbeing of all children, including boys and gender non-conforming children, because very few men, especially those in power, give two hoots about them.

IMHO, a child under 18 cannot be trans.