School Guidance out Tomorrow

It was painstakingly assessed by UK gov lawyers and their advice was ignored. The advice they gave was leaked, as posted upthread.

"Schools face a “high risk” of successful legal challenges if they follow several elements of today’s controversial trans guidance, advice written by the government’s own lawyers reveals.
The leaked legal advice, issued in the last week and obtained by Schools Week, shows Department for Education lawyers flagged concern that several passages in the guidance would fail to stand up to a legal challenge.
Despite the warning, these passages were still included in the official draft guidance published today, which was signed off by Number 10 and equalities minister Kemi Badenoch.
It means the government has issued guidance its own lawyers made clear would likely lead to schools facing legal challenges that they would lose. Other warnings included the department itself would lose a legal challenge over aspects of the guidance.
A government spokesperson said: “We do not comment on leaks."

https://schoolsweek.co.uk/trans-guidance-dfe-lawyers-said-schools-face-high-risk-of-being-sued/

On a very personal note, I hope schools do take all of this on board.
DD socially transitioned at school, and only at school a few years ago. Despite telling them I did not want her name changed, it has been. She wasn't allowed to be in the girls dormitory on a school trip but was able to share with the boys, with our permission! Which obviously wasn't given.
Her brother has also been pulled up many times for calling her his sister and using her wrong name.
The utter madness of it all must come to an end, but I fear it won't even with this guidance and we will be those parents for more years to come.

Is Schools Week a reliable source? It seems to think that DfE lawyers’ advice was not acted upon sufficiently?

https://schoolsweek.co.uk/trans-guidance-dfe-lawyers-said-schools-face-high-risk-of-being-sued/

The biggest issue is the pronoun and name part.

Because it's not a neutral act, the children already believe they are entitled to be seen as completely different. I agree it's unclear what should happen next for these children.

The schools who've done this in secret are in deep shit.

Ritchie Herron has made this point on Twitter:

My heart breaks for the younguns who have had nothing but affirmation, and now suddenly face a rude awakening.

They shouldn't have been placed in this position, and I do worry how this will intersect with the affirmation or suicide narrative.

Poor bairns

This has been a horrific safeguarding failure.

I'd also be cpom-ing everything.

It would be fascinating to know just how many schools are being unprofessional and not following standard safeguarding guidance when dealing with pupils who come out as trans to a member of staff, and to be able to compare this to schools who use common sense, standard protocols and liaise successfully with pupils and their parents to negotiate their way through this minefield.

Our school does it very successfully, including preserving single-sex spaces, and I would like to hope that we are not an isolated case.

Not that I particularly agree with children being ‘allowed’ to socially transition in school, but if parents have instructed the school to change a child’s preferred name then that should stand in my opinion.

What I mean is that those who bring a test case against "social transition should be rare" will have to prove that the current law prevents this because the way that the law protects gender reassignment applies to children AND applies to children who have done no more than go into school and say they want to change gender (ie the stonewall case). It's not actually clear that this is the case, but it's not clear that it isn't.

It is quite possible that a court might find that actually the threshold for what constitutes protected undergoing "gender reassignment" in children means that the person generally needs to have committed to a pathway, involved medical professionals or had counselling etc. or maybe not.

But at least it would be clear.

I don't think so. It sets out statutory duties and the law so it can't do that, and overstep the law at the same time. But Michael Foran says it better than me:

"It's evidence based & legally compliant. This will have been painstakingly assessed by UK gov lawyers and my own view is that there is no danger of breaching the Equality Act if this guidance was followed. Any suggestion to the contrary should be treated with extreme suspicion."

x.com/michaelpforan/status/1737204280434540875?s=46&t=WHoOZ_3Kv5G6-FyQuvE0LQ

There are lots of comments on twitter and reddit from teachers concerned about having to 'out' children to their parents. So schools are transitioning children without parental consent.

Lots of schools have been very reluctant to share sex education materials, including their teaching on gender, with parents.

Schools are forcing children to refer to other children and teachers with incorrect pronouns. Parents do not know if their daughers are sharing toilets, changing rooms and sports lessons with boys.

Some schools have encouraged lots of secrecy around this area - an obvious safeguarding risk.

If schools were unsure of their obligations, why didnt they demand clarification years ago? They know that the EqA isnt the only law thats applicable here - theres the childrens act and the education act.

I know its not all teachers and not all schools. But pretending that schools havent legitimised the concept of gender identity into schools isnt truthful.

Depends which law you are most interested in.

Posters on here have repeatedly pointed out that child safeguarding is covered by a statutory framework and that mindlessly putting children on a pathway to body modification and sterilisation, at the behest of external lobby groups, or of activist headteachers, is in breach of that.

I'd be keen to see evidence that 'the law doesn't allow it'. I don't believe there is any, there's opinion in both directions but it's not been tested in court. Maybe it will be.

I don't think anyone is arguing that the PC of gender reassignment isn't meaningful. Just that what that means, both in practical terms and in legal terms, is not clear. There is no law which says that children ought to be socially transitioned, and evidence is starting to pile up that social transition isn't helpful and may be harmful, so its a good thing that this guidance has finally arrived so that schools have clear directions from government on what to do if a child is gender questioning.

Hmmm, mixed coverage on the BBC news at 10. Anchor was vague "urges schools to preserve single sex toilets and changing rooms" but education correspondent very clear that toilets and changing rooms must have single sex options.

@noblegiraffe

I think that the guidance serves its purpose if it shows that the current law prevents schools from taking a cautious approach in line with recommendations in the Cass review and supports those who take a cavalier approach to transitioning children - if those who complain about the guidance loudest make this point for the government it becomes much easier for those in government who are not in favour of social transitioning to say the law should change.

Strictly speaking, it’s not men (ie it’s not the fact they’re an adult not a child which supposedly gives them that “entitlement”). It’s adult males with a GRC. (GRCs aren’t available to children.)

Adult males without a GRC, which awards the status of “legal fiction female”, do not have an entitlement to access opposite sex spaces. (Other than under Stonewall law.)

The problem, as has been said on here, is that once an entitlement to access opposite sex spaces has been awarded to adult males with a GRC, there’s no practical mechanism for stopping adult males with the PC of GR but without a GRC from accessing that entitlement, nor of stopping adult males without the PC of GR from doing so either.

I’m sure you know all that already. I just wanted to point out the distinction between the PC of GR, and having a GRC. As having the protected characteristic of gender reassignment (applicable to under 18s) does not automatically confer the rights conferred by a GRC (restricted to over 18s), and the PC of GR is being deployed a lot in this thread to justify eg social transition.

They're already overstepping the law with the guidance as it is.

This government is not averse to going up against the courts where they think they have a case. They've been told there isn't a case and that the only way forward would be to change the law.

“You misunderstand. The guidance, if the law allowed it, would very much ban social transitioning in schools. That the guidance doesn't ban it outright means that the law doesn't allow it.”

I think it might be more accurate to say “if, on a topic which is hotly contested within political parties, and in a pre-election period, there was absolutely no uncertainty or debate whatsoever as to whether the law allowed it…”

We could not get men out of adult female spaces but we can for children

It’s not the same

The purpose of the guidance is to help schools manage the rise of social transitioning in a lawful way. Someone very much wanting to ban something, doesn't make that thing the purpose or scope of the guidance.

You misunderstand. The guidance, if the law allowed it, would very much ban social transitioning in schools. That the guidance doesn't ban it outright means that the law doesn't allow it.

That the law doesn't allow it means that the protected characteristic of gender reassignment as relates to children is meaningful.

@noblegiraffe

I agree, doing nothing is not a neutral act.

It is, upon current evidence as to the rates of desistance (which is causing a u turn for many Scandi countries in treating young people with gender dysphoria), most likely the least harmful. Which is why it should be prioritised in those who have not already been transitioned. In 10 years time, the medicalisation approach will not look so benign as the be kind brigade think.

As regards those who have been socially transitioned, there should be guidance for this, I would agree. Compassionate guidance for people who are suffering a great deal of turmoil.

Not sure why teachers are getting such a bashing on this thread.
In my experience it is not the school leading the social transitioning but the parents - in our school no child can change their preferred name without parental permission and, believe me, it will be FUCKING BRILLIANT when we can say ‘No, Mrs Smith, we will not be requiring our staff to call little Simon Stephanie from now on.’

What I want to know is why, in my experience again, are the children who choose to socially transition autistic - almost without exception?

The purpose of the guidance is to help schools manage the rise of social transitioning in a lawful way. Someone very much wanting to ban something, doesn't make that thing the purpose or scope of the guidance.

The question of the law has been chucked around quite a lot but as far as I can see, has never been tested in terms of children and the PC of gender reassignment. We have legal opinion (not case law, I don't think) that children and adults don't have the same rights as regards the PC, but it's not been tested in court. So commentators on either side of the question can say 'the law does/doesn't allow x or y' but it's not come to court as yet, so is still to an extent unknown. I'm pretty confident that when the PC was included in the Equality Act, no one was thinking about whether children would be allowed/encouraged to socially transition on the scale we are now seeing. It will probably have to be tested in court, or the law clarified, before long but this guidance is a lot clearer than what we've had up to now.

The guidance may not ban it but it will change the situation for the better for children

And it will give children their own single sex facilities and mean no sanctions for pronouns and change sports

I don't know where you're getting the idea that the guidance cannot ban transition

Because, if you had been following the story of the development of the guidance, you would be aware that one of the co-signatories of the guidance very much wanted to ban all social transition in schools, but came up against the law which wouldn't allow her to do that.

Well it also doesn't say they don't have the right to eat cake in science lessons or call their head of year Mavis, but that doesn't mean they do have that right.

I don't know where you're getting the idea that the guidance cannot ban transition - the purpose isn't to ban transition but to mitigate the potential harm of social transition encouraged by unqualified people and hidden from parents. This is not about banning trans people, it's about safeguarding children from something known to be potentially harmful.

Here.

It was your post at 21.17 that conflated “less favourable treatment” and harassment. As part of your energetic defence of the hypothetical headteacher.

Not the EHRC who conflated the two.