Secondary School complaint about mixed sex changing rooms. Update, school response and request for help writing the escalated complaint to governors

(Wish I could copy sections of text) - they will very likely repeat this

They will bat back with “ kcsie states that LGBT children are not a risk in themselves but may require extra support” as per their first reply

@TangenitalContrivance Another previous DfE response may also prove useful too. This bit was the reply regarding risks to girls on their design guidance of enclosed toilets:

‘Further to your email. Schools and colleges have a critical role to play in protecting children and keeping them safe. Keeping children safe in education’ (KCSIE) is statutory guidance that all schools and colleges must have regard to when carrying out their duties to safeguard and promote welfare of children.
The KCSIE guidance is very clear that best interests of children must always come first where there are any concerns action should be taken immediately.
Amongst other things, KCSIE sets out that safeguarding is everyone’s responsibility and that;
- All staff have a responsibility to provide a safe environment in which children can learn.
- All staff should receive safeguarding training.
- All staff should know what to do if they have a concern about a child.
- All schools and colleges should have an effective child protection policy that also reflects the approach to child-on-child abuse, including: procedures to minimise the risk of it occurring; how allegations will be recorded, investigated and dealt with; clear process on victim and perpetrator support, clear statement that child on child abuse should never be tolerated or passed off as just part of growing up; and the different forms on child on child abuse can take.
The guidance has been further strengthened for 2022 – ensuring schools have even clearer guidance on how to deal with reports of sexual abuse. This revised guidance now includes the ‘sexual violence and sexual harassment advice ‘which puts it on a statutory footing to give the issue the prominence it deserves.
I hope this information and reply is helpful.
Once again, thank you again for reaching out to the department.’

The ‘procedures to minimise the risk’ is the one that stood out for me. It’s to minimise the risks for the girls and boys, and the person ultimately in charge.
It’s safeguarding.

@TangenitalContrivance I thought the following may be of use? The italics bit is a DfE response when I asked the Equality and Impact Assessment records for toilet designs as stipulated in their document of 2023. I gave them information and evidence that these designs are more dangerous for medically vulnerable and girls. The DfE stated they have no EIA records (for my FOI request) so I then asked who had them. They then stated:

‘In terms of health and safety in schools, all schools must adhere to the Health and Safety at Work etc. Act 1974. The employer in a school must take reasonable steps to ensure that staff and pupils are not exposed to risks to their health and safety.

The employer is required to ensure that a risk assessment is conducted and measures put in place to minimise any known risk. Employers, school staff and others also have a duty under common law to take care of pupils in the same way that a prudent parent would.

The employer in a school will vary depending on the type of school. For community, voluntary controlled, community special, and maintained nursery schools this is the local authority. For foundation schools, foundation special schools and voluntary aided schools the employer is the governing board. For academies and free schools, the employer is the governing board or academy trust and the proprietor is the employer in independent schools.

Schools must have a health and safety policy in place which the headteacher is responsible for implementing.

Furthermore, the department’s statutory guidance ‘Supporting Pupils with Medical Conditions at School’ (https://www.gov.uk/government/publications/supporting-pupils-at-school-with-medical-conditions3) makes it clear to schools what is expected of them in taking reasonable steps to fulfil their legal obligations in relation to toilet facilities.

Any concerns about a school’s procedures should be raised directly with the school in question in the first instance as schools are autonomous institutions run by a governing body, with day-to-day operational decisions such as access to toilets during lessons, managed by the headteacher.

I hope this reply is helpful.’

In previous correspondence the DfE have also said the ultimate responsibility does not lie with them when things go wrong. Which is what @AnSolas said. But feels unfair on schools to be following current DfE designs but being also (not) knowing that when something goes wrong, the DfE would be quoting legislation from over 50 years ago.

If you look up the phrase ‘prudent parent’ it is useful for safeguarding in schools.

(edited to make clear the equality and impact assessments related to my FOI)

The OP way will also work if she can get the decision makers to worry about the word "may".
With no legal "must" the decision makers take on personal liability as they are now making a decision in a professional capacity which exceeds the crux of legal advice. So collection of current documentation (and proof of no process) can be a wake up call to the current management team.

The decision should be stress tested under the laws and regs (and social values) in place at the time the decision was made. If a staff member is choosing to foolishly make anti-safeguarding decisions on proposed changes they deserve to be sued.

A child can sue the school even if their parent approved a mixed sex space because the parent can not waive the childs right to be safeguarded by the school even if it is against the parents wish. And we are I think going to become more conservative when it comes to children and consent as the younger genetation are taught to recognise it needed to be freely given. So staff should not rely on peer pressure or school culture of pro male in ¹female SSS to justify why the ignored their duty to all the girls and conflicts in school policy highlight issues (eg how can the school have a "consent must be obtained and freely given" policy or a "porn is bad" policy and have a "male showering with school girls" policy) plus the child is within a coercive control relationship with the school.

The majority of UK women are "hell no" to giving males a right to freely access womens spaces because they are not stupid and understand that one male is all males and men know how men are,r so good luck with finding a jury pool who would not be sympathetic when its a school on trial against one student.

May not be suitable to use the male changing room is a long way from must be placed in an unsupervised room room with semi-naked or naked underage girls.

Education is seen as a right so any girl(boy) who felt bullied and harmed by having been forced to accept a male(female) in her changing room/shower area and goes legal will imo include the decisionmakers to make them jusyify the policy. It would also ensure that the school cant hide behind lack of documentation.

People become rather conservative in their decision making when they face a personal risk of being sued for many years after they made a decision. And imo that reply was carefully worded only say a male may not be forced to change with other males with a bit of handwaving trying to hide the problems the school face if they let some males into the SSS.

The case was: R (on the application of Green) v Secretary of State for Justice [2013] EWHC 3491 (Admin)

Naomi Cunningham's -with thanks to TakingMyChancesWithTheRabbits!- review that mentions it provides some useful analysis (search ofr "comparator" to find the right paragraphs: www.legalfeminist.org.uk/2021/09/02/a-practical-guide/

These are great points, as are so many other posts.

At the same time, they're not you going to take a blind bit of notice of a parent’s letters, even if lawyer sent, as they truly believe the law is as such and they believe that Labour will be reversing what’s currently in kcsie.

the only way to get any of this done, in that school, and to make changes in schools across the country, is to drag them through the courts and a judicial review.

the beliefs and fake laws that have developed and beloved to be true, thanks to the EA+activists, are really very chilling in the context of child safeguarding and must be dealt with asap.

This.

Yes, it's long been noted that it's not about the space. It's just a space. It's about the presence of the girls and women in the space. It is their presence that is crucial for the validation.

This School is using the girl pupils' bodies to validate a boys self image

Naomi Cunningham is a supermodel to me! ❤️❤️🤣🤣

Naomi Cunningham. Naomi Campbell's the supermodel.🤣

AnSolas brilliant post.

In terms of 'reasonability of adjustments' phrasing used in other parts of the EqA in making decisions, it would seem very obvious that to put a boy in the girls' changing rooms might on the surface meet his immediate wishes (strongly argued not his needs, nor in his best interests from multiple angles including safeguarding) but impacts upon every single girl in that facility.

It quite simply places male interests above all of the female ones. It abandons all diversity of access and inclusion of girls in the girls space to try and crowbar in one boy. It abandons basic duty of care and human compassion towards all the girls to crowbar in one boy.

Whose needs could be completely met by provision of a separate space of his own. The only thing lacking in that space would be the bodies of girls in a state of undress.

And that's the misogyny and sexism in all its glory right there.

I’m on my phone so it’s hard to search it out but it’s in Naomi Campbell’s (? The KC who did the UCU Case) review of RMW’s book on trans law. Will look it up when I get home.

The main problem is that the school is saying without saying that it has no legal obligation to provide single sex spaces for changing and showering but section 2 of the regs says they have to look at sex when making a decision.

So you need a base line on why the school manage the minor children under the current policy.
Q1 why is the school currently spliting mixed sex classes into single sex space (SSS) changing rooms?
Q2 What body of work has been produced and approved since 2012 to justify the policy of having a female and male area not a mixed sex area?
Q3 how do the school establish if a student is female or male (eg can a parent register the minor without government documents)?
Q4 How and when are the school documenting a minors Faith and how often do the school vetify their data (as this can change over time and may not be the same as the parents /original data collected)?
Q5 if the school has gone out to legal on the trans policy why have they remained within the current policy and not already created a mixed sex changing policy?
Q6 How is the school jusyifying a public statement of "case-by-case" where this disadvantages minors (who have faith pratice which require single sex spaces) on their choice of school/at application and leads to minors of some Faiths not picking the school due to the risk of conflict (ie what documentation do they currently have on their duties not to discriminate eg can they prove they have a comparable crossection of the local community )?

In responding to this complaint, I have sought advice from the legal services department at Brighton and Hove City Council.

Can that now be FOIed?

However, your assertion in relation to the interpretation of this guidance is not
accepted.

This reply looked at a male in the female changing rooms.

You need to play the numbers card on how many extra/avoidable child sex offences the school is willing to risk.

Let them first justify why they would place a female into a male locker room or shower area and if they could guarantee that female minor not be exposed to a sexual act (voluntary or involuntary) by a single pubescent male. As you point out the school has to safeguard both minors.

If the school can not do this they can not apply a different logic to a single male in a female changing room.

Regulation 4(2) of the School Premises (England) Regulations 2012 provides that ‘Separate toilet
facilities for boys and girls aged 8 years or over must be provided except where the toilet facility is
provided in a room that can be secured from the inside and that is intended for use by one pupil at
a time.” This means that at least some single-sex toilets, or toilets “in a room that can be secured
from the inside”, must be provided in a school. School XXX complies with this requirement.

Q1 Is the school amending or proposing to amend the policy in a way which would breached this legal obligation?
Q2 How is the school currently ensuring that the provision is being complied with eg what is the process that is followed if a minor is found to be in the toilet block assigned to the other sex?
Q3 how is the school ensuring than no staff member creates a breach of the schools legal obligation by facilitating a member of the opposite sex to use the toilet facility for the other sex?
Q4 Is the school allowing teachers and others employed at the school, and visitors access to the toilet blocks

The school will not have a problem (legal or otherwise) with this as the section says separate after 8 years old

Regulation 4(4) of the School Premises (England) Regulations 2012 provides that “Suitable
changing accommodation and showers must be provided for pupils aged 11 years or over at the
start of the school year who receive physical education”.

Suitable not separate is the issue.
(Because until 5 min ago only a paedophile would be saying unsupervised mixed sex changing rooms were a good idea.)

Q1 as above what is the current school policy basis for splitting changing rooms and showers by sex?

Hint : It should be via section 2(2) having regard to their sex

Looking at the regs and adjusting to highlight :

Interpretation
2.—(1) In these Regulations “physical education” includes the playing of games.
(2) Any requirement that anything provided under these Regulations must be
● “suitable” means that it must be suitable for the pupils in respect of whom it is provided, having regard to their
• ages,
• numbers and
• sex and any
• special requirements they may have.
(3) For the purposes of these Regulations a pupil has
• “special requirements” if the pupil has any needs arising from
° physical,
° medical,
° sensory,
° learning,
° emotional or
° behavioural difficulties
which require provision which is additional to or different from that generally required by children of the same age in schools other than special schools.

Toilet and washing facilities
4.—(1) Subject to paragraph (3),
suitable [ ● “suitable” means that it must be suitable for the pupils in respect of whom it is provided, having regard to their
• ages,
• numbers and
• sex and any
• special requirements they may have.]
toilet and washing facilities must be provided for the sole use of pupils.

(2) Separate toilet facilities for boys and girls aged 8 years or over must be provided except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time.

(3) Where separate facilities are provided under paragraph (1) for pupils who are disabled, they may also be used by other pupils, teachers and others employed at the school, and visitors, whether or not they are disabled.

(4) Suitable [ ● “suitable” means that it must be suitable for the pupils in respect of whom it is provided, having regard to their
• ages,
• numbers and
• sex and any
• special requirements they may have.]
changing accommodation and showers must be provided for pupils aged 11 years or over at the start of the school year who receive physical education.

• “special requirements”
° medical: PTSD etc from CSA
° learning: safeguarding risk re Sen girls
° emotional: basic right to not be an emotional prop and the ability not to have to jusyify why the minor wants SSS

Case by case
What outcome is reached and applied to one minor in the cohort (the whole school population) must apply to all the minors. Otherwise the school is attempting to tailor specific policies for some individual minors and not others.
The school is suggesting it may remove the basic physical safegarding applied to some individuals to benefit other individuals if so what was the original basis of the SSS.
This proposal of trying to pick "nice/safe" males is inherently dangerous as a failure will be to incorrectly safeguard by flawed risk assess each individual minor who would be impacted by the lower safeguarding policy. In real life its an unworkable situation.
If the school is suggesting the case by case applies to each individual minor in a year group how is the school proposing to manage this before they implement change.
Q1 Has the school produced an actual standardised policy process document with a rating /value weight to create a pass/fail ?
Q2 if the school has not produced a process document when will it be produced?
Q3 is the school currently intending to applying any ad hoc methology to determine an outcome?

The implication that trans students might pose a significant safeguarding risk if they
were to use a changing room of the opposite sex is unsubstantiated and contrary to paragraph
205 of the guidance which states:
“ A child or young person being lesbian, gay, or bisexual is not in itself an inherent risk factor for
harm, however, they can sometimes be targeted by other children.”

Q1 is the school currently engaged in data processing the sexual orientation of any child attending and what is the lawful basis for collection and applying that data point to the provision of toilet and washing facilities?
Q2 is the school making an assumption that only a homosexual child and a bisexual child should be included in the cohort of children who fall with in the clasaification to whom the transgender policy is applicable?
Q3 is the school policy that a heterosexual child would not be included in the cohort of children who fall with in the clasaification to whom the transgender policy is applicable?
Q4 is it the schools policy that a child would have to disclose their sexual orientation before they would be included in the cohort of children who fall with in the clasaification to whom the transgender policy is applicable?

As we have previously advised, the use of changing rooms by trans students is assessed on a case-by-case basis in discussion with the individual student and others potentially affected.

Q1 Have the school produced a framework?
Q2 Have the school identified the stakeholders as well as the "others potentially affected"?
Q3 framework
Part A would be in the current single sex space
Part B would be the individual space, have the school already got such provision and if so what is the current capacity or if not have the school identified how such provision will be provided (space cost etc) and the maximum capacity.
Part C would be the mixed sex space with other minors and how the school intend to prove that the minor waives the schools legal obligations to provide suitable changing rooms or could the minor sue the school and decision makers in the future?
But the school needs some kind of pre-existing framework document and not make something up in crisis mode. And if they have paid legal how has the may been explained without examples /case studies?

In making a decision as to which changing room a trans student will use, the school will take into account the needs of all other students including girls and those with relevant religious or other beliefs. It will also consider whether any decision it takes regarding a trans student will impact on students with other protected characteristics (which include sex and religion).

"Needs of all" is imo section 2
Interpretation
2.—(1) In these Regulations “physical education” includes the playing of games.
(2) Any requirement that anything provided under these Regulations must be
● “suitable” means that it must be suitable for the pupils in respect of whom it is provided, having regard to their
• ages,
• numbers and
• sex and any
• special requirements they may have.
(3) For the purposes of these Regulations a pupil has
• “special requirements” if the pupil has any needs arising from
° physical,
° medical,
° sensory,
° learning,
° emotional or
° behavioural difficulties
which require provision which is additional to or different from that generally required by children of the same age in schools other than special schools.

If, for example, a decision regarding trans students will disproportionately disadvantage girls or members of particular religious groups, the school will be under a duty to demonstrate that any such disadvantage is justified.

Nope:

"suitable” means that it must be suitable for the pupils in respect of whom it is provided, having regard to their
• ages,
• numbers and
• sex and any
• special requirements they may have.
(3) For the purposes of these Regulations a pupil has
• “special requirements” if the pupil has any needs arising from
° physical,
° medical,
° sensory,
° learning,
° emotional or
° behavioural difficulties
which require provision which is additional to or different from that generally required by children of the same age in schools other than special schools.

They have a positive duty not a passive duty to provide suitable provision for each sex.

So it is suitable to place a female in with males or a male in with females.

The objective is to allow the minors to change for PE not to force minors to provide some kind of group support for an individual student.

And if the school has a single unit for disability provision how will the school assign the space.

To further explain, although not relevant to the OP:

The protected characteristic of gender reassignment is intended to stop discrimination against 'trans' people. So for example an employer could not refuse to consider a trans person for a promotion just because they were trans.

It does NOT mean that trans people have to be treated as the opposite sex and allowed into opposite sex spaces.

Furthermore, an employer could not prevent a transwoman (a male) from using the male toilets because "the other men don't like it". A male has the right to use the male toilets, even if they are a transwoman
They don't have the right to use the female toilets.

im a bit confused about the GRC and protected characteristic stuff still

In a nutshell:
Let us assume the widest possible definition, i.e. that any child of any age who claims in any way to be "trans" is protected by the characteristic of gender reassignment.
Such a male boy (who wants to be a girl) would not be discriminated against under this protected characteristic by stopping him using the female spaces.
Because NO BOY is allowed to use the female spaces. The correct comparator is other boys, not girls.
If no males are allowed in, it is not discriminatory to say the 'trans' boy is not allowed in.

Someone mentioned this was settled in a court case - does anyone have the name of the case for OP to quote?

Pointing out they appear to be conflating a child's desire to identify as a different gender with a child's sexuality and that the complaint has not touched on and is not at all concerned with children's sexuality would be good.

But the definition of "trans" that the school uses is irrelevant to OP's complaint. OP is asking them to ensure their policy reflects the need to have single sex facilities. Her focus is on ensuring male pupils aren't allowed to enter female spaces (and vice versa). A male child - regardless of the school's definition of trans - should not be entering female spaces. It would be pointless to try and debate that with them.

Exactly what I thought reading that bit.

Can you ask the school to clarify what they mean when they say a child is trans?

A child cannot get a GRC, can no longer get cross sex hormones and I hope surgery has also been stopped.

So what is a trans child? If they cannot identify a trans child how can they provide suitable services to that child and to any other?

What about a child who identifies as female only of Friday afternoons when they want to get out of PE?

Good luck with this OP don't let the bastards grind you down.

Just to say that I was struck by the “femaleness” of your statement. You’re struggling to carry on knowing that the school disapproves. That’s not a feature I’m seeing from the other side of this - worth remembering in tough times. Best of luck with it all xx

@TangenitalContrivance Just to make sure you are aware, that technical guidance for schools in England from the EHRC also includes:

Victimisation for actions of parents or siblings
5.77 A school must not subject a pupil to a detriment because of something that his or her parent or sibling has done in relation to the making of a complaint of discrimination.

Thank you OP. All our children need parents like you challenging this dangerous nonsense being forced on them.

Sending you bonne courage as well. We are all behind you, all of us vipers. 🐍🐍🐍

As Datun said, they can be contemplating or undertaking “reassignment” as per EA because it means very little in the EA. It does not mean getting or applying for a GRC.