EHRC consultation - schools technical guidance

Indeed. The grooming of schools to unconditionally accept trans ideology along with trying to embed parental alienation in school systems has been chilling to watch. It goes against fundamental safeguarding principles way back to the Children Act about working in partnership with parents and the state not intervening in family life without good reason.

It's been so extreme that the DfE has finally started to roll this back but it's slow progress. Guidance still has "qualifications" that allow those with ill intent towards families and children to persist with the "families are dangerous for children" narrative and the simplistic belief that sex change is positive for children.

KCSIE says that some gender questioning children will have the pc and some won't. Where there is doubt, they should be treated as if they do.

'Proposing to transition' is extremely vague and transition can just involve dressing differently so it's a bit crap really. I don't think it would apply to non-binary kids because you have to be transitioning to the opposite sex, not just away from your own.

It is unclear in KCSIE whether parents would need to be involved if a gender questioning child was being allowed to get changed in an alternative space.

I don't think it counts as social transition because it is not supporting the child to appear as the opposite sex.

KCSIE says that if a child is using alternative facilities, these changes should be recorded, reviewed regularly and communicated appropriately but it does not specify what this means.

From a parent’s perspective, it is incredibly frustrating to have schools validating and enabling trans ideology in school. For parents (like me) trying to safeguard their child and manage their distress holistic, it leads to triangulation where the parent is the bad guy and school (the other authority figure) supports the child who sees themselves as a victim.

I know the new KCSIE mandates school must take parents views into account and some parents will be all for transitioning their children so there’s not a ‘right answer’. However schools validating the ideology and enabling some children to transition is not a good thing IMO

Sure, but if it's recommended as an approach for gender questioning children in KCSIE then suggesting that it is inherently unsafe and always inappropriate and following that advice could cause you legal problems is a bit of a non-starter.

Yes - "...should consider...."

You may have more experience of being challenged on these issues at a legal level than I do? But my extensive experience tells me that demands made by transactivists about children usually fail to appreciate the range of issues that these vulnerable children present with.

The trans demands repeatedly overshadow the numerous comorbidities that contribute to a child's mental health issues. They seek to marginalise and emphasise difference and vulnerability, rather than encouraging resilience, collaboration and learning in children. It's not an approach that has any place in a school and finally small steps are being made to see these children as vulnerable rather than as pawns in adult debates.

Anyway - interesting discussion but probably enough repetition of the same issues which is very tedious for others.

You should consider it, that doesn't mean you have to do it if it's not practical or reasonable, same as workplace adjustments. In some cases, it isn't reasonable or workable.

I did and it said
"Schools aren’t legally obliged to provide reasonable adjustments for children who aren’t disabled, but many will work to provide similar support where needed.
For example, a pupil who experiences anxiety may find it helpful to adjust what time they arrive at school.
Working with pupils to make these adjustments can increase attendance and improve behaviour.
Schools should consider this approach in these circumstances."

And the use of the word 'should' is important. Not might, or could.

If allowing a pupil to get changed in alternative space because the correct sex space causes them distress, it certainly seems to meet these criteria, if it enables that pupil to participate in their PE lesson where otherwise they'd be truanting/refusing to get changed.

I mean, it's in KCSIE so I think it would be fairly easy to defend this in court.

I am out now - but just wanted to point out no offence taken - just really difficult to not speak up when I know so much about safeguarding and toilet incidents. And how design ‘solutions’ once deemed discriminatory and the BBC said the DfE called ‘illegal’ are now seem be ok'ed.

Maybe go and read up on reasonable adjustments and the criteria for using them? (link above).
All sorts of things cause distress to children - sometimes seemingly minor things cause immense distress as those of us who are parents or who work with children of all ages can attest to.
Sometimes making an adjustment to systems is the appropriate thing to do. And sometimes (as I've repeatedly explained upthread) it's a catastrophic thing to do.
Sometimes the right thing to do is to enable resilience and acceptance in children.
When you deal with legal matters in schools the reasonableness factors kick in - whether an adjustment is appropriate depends on cost, practicality, effectiveness and health and safety, not to mention budgets as well as personal demands from individuals.
Having to justify that your decisions to deny a service in front of tribunals / courts (which I have done) is very informative for a school. And it informs your practice - especially in the face of emotive demands from parents and students insisting on certain provisions that may well not be in their long term interests and certianly not in the interests of the school population.

Just because parents and a child want something doesn't mean it's right for the child in a school setting.

Anyone of any age can have the pc of gr.

I agree but to have the PC of gender reassignment you must be proposing or in the process of transitioning from one sex to the other. I don't believe a "gender questioning child" is proposing to transition they are just gender questioning.

Well doing PE caused significant distress to me, and I wasn't given an alternative, which was probably the correct thing to do. You can't pander to all distress.

Well yes, we agree. That the protected characteristic of gender reassignment applies to children is the biggest problem here.

But if using the correct sex facilities causes distress, then I think you will have a hard time arguing that an alternative shouldn't be provided as a reasonable adjustment even if the protected characteristic isn't there.

Schools provide alternatives all the time for children who are distressed by particular things. We are generally not in the business of deliberately causing distress to children, regardless of the source.

OK this is quick as I am going out.
Things we can agree on:
Toilets are vulnerable places (this is so much so they have a special section in the Sexual Offences Act 2003).
Pupils have sex in toilets, do drugs in toilets, vape in toilets. They vandalise toilets. All the same reasons the amount of public toilet provision has decreased.

It’s whether you agree that designs should be such that vulnerable children (I include all vulnerable children) should be in a completely private design or a semi private design within a private environment for their sex.

By making the cubicle an area that opens up onto an open space, the designs are private and you are taking away the rights of vulnerable children to have access to a safer design if they collapse or misuse happens within that space.

You have used the example of children vaping in toilets. There’s teachers stating they are traumatised from doing cpr on children in playgrounds or corridors who are having seizures due to spiked vapes. They are scared that next time it will be in a toilet and they won’t know. This was report by Bath University.

KCSIE says that it can apply, and where it is unclear whether it applies or not, the school should assume that it does apply.

You can only have the PC of gender reassignment if you are proposing or actually undertaking a transition from one sex to the other. I don't think a "gender questioning child" is proposing or actually undertaking a transition from one sex to the other so the PC doesn't apply any more than it does for those who claim to be NB.

As ever this has swerved to toilets (no offence @Keeptoiletssafe ). The issue we were originally discussing was as you point out @BonfireLady :

"Given the PC of gender reassignment does not mean people need to be treated differently from others who are the same sex as them, I would assume that this second interpretation is the right one. IANAL but as long as a boy who identifies as a girl can wear a skirt and when using the boys' loos and changing rooms, I'd say that this meets the legal requirement to not discriminate on the basis of gender reassignment."

Transactivists - including those who have wedged themselves into schools - are very keen on insisting that it's transphobic to deny a child confused about their sex exactly what they want - whether it's access to the opposite sex changing rooms, dormitories etc, special spaces, exemption from safeguarding / pastoral care policies that should apply to every child.

IAalsoNAL but I remain frustrated that schools are repeatedly urged to deprioritise KCSIE in favour of dancing to transactivist tunes about the "trans child" and expectations about "reasonable adjustments" . This is a repeat of what was exposed and criticised in the GIDs debacle with Cass clearly identifying the problem of trans being prioritised over all the other mental health challenges and overshadowing the need to address all needs that this vulnerable cohort of children exhibit

Experience demonstrates that transactivists will use any possible loophole to deprioritise safeguarding children and this is a massive one. It's going to need a sustained campaign to highlight the reality that transactivist demands based on the pc of gender reassignment applying to all children (even new borns) in reality, render these children less safe and in many cases will foster, rather than address, their mental health challenges.

If you think they are interpreting the law incorrectly here then that's what the consultation is for, so I guess you can submit your feedback.

However, lawyers have been all over this for years and come to the same conclusion as the EHRC. Kemi Badenoch's trans guidance for schools is a prime example. She would have wanted the guidance to be 'no social transitioning in schools at all, ever, and kids should all use correct sex facilities' but her guidance didn't say this, presumably because lawyers told her it couldn't.

Her guidance says pretty much the same thing about considering offering an alternative provision where correct sex provision causes distress. In fact it says 'should'.

You're right that it'll be the Equality Act that they believe is behind this. But this...

Either of those could be used to say that forcing a kid with the protected characteristic of gender reassignment to use correct sex facilities would put them at a disadvantage, or refusing an alternative arrangement as a reasonable adjustment if could be implemented would be treating them less favourably...

Could easily be countered with:

Either could be used to say that forcing a kid with the protected characteristic of gender reassignment to wear particular clothes or use particular pronouns to use correct sex facilities, or refusing to allow an alternative arrangement if it could be implemented could be treating them less favourably.

Given the PC of gender reassignment does not mean people need to be treated differently from others who are the same sex as them, I would assume that this second interpretation is the right one. IANAL but as long as a boy who identifies as a girl can wear a skirt and when using the boys' loos and changing rooms, I'd say that this meets the legal requirement to not discriminate on the basis of gender reassignment.

Edited for typo and to say that for the legal threshold to be reached, it would be on the parents or child to prove that a) an alternative could be provided (if the school has said it can't) and b) to explain why not having one means the child has suffered discrimination if they are allowed to wear whatever uniform they like when using the correct sex facilities

And with the old style toilets of a room containing cubicles with gaps - children didn't feel safe using those either. And they also weren't safe.

The EHRC is legally incoherent on this though. It can't be unlawful discrimination to expect a child to use the facilities that match their sex as there is no law that backs this up.

@BonfireLady given that the guidance is a legal interpretation of the Equality Act, they think that the Equality Act is the law that backs it up?

The Equality Act says that if you have a rule that applies to everybody but puts people who have a protected characteristic at a disadvantage then that would count as indirect discrimination. Treating people with a protected characteristic less favourably would count as direct discrimination.

Either of those could be used to say that forcing a kid with the protected characteristic of gender reassignment to use correct sex facilities would put them at a disadvantage, or refusing an alternative arrangement as a reasonable adjustment if could be implemented would be treating them less favourably.

Let me put this another way.

If there’s a characteristic that makes a child vulnerable, don’t you think creating a targeted stand alone private, mixed sex toilet for them to use, which has desirable characteristics for misuse that everyone can access, may lead to safeguarding issues? I have listened to children who don’t want to use toilets for their sex. The girls feel duty-bound to use these toilets but feel unsafe using them.

I am thinking about everyone’s safety.

No, it says that it would be unlawful discrimination to force the child to use the correct sex facilities, not to not provide an alternative space.

Yes, you're right. I got that the wrong way round. Oops!

The EHRC is legally incoherent on this though. It can't be unlawful discrimination to expect a child to use the facilities that match their sex as there is no law that backs this up.

It says a suitable alternative to forcing the use of correct sex facilities might be to allow the pupil to use a different space. Not should, not must. It is not saying schools have to do this.

This is fine. It's the premise that comes before it that isn't i.e. the EHRC's idea that it is "likely to be unlawful indirect gender reassignment discrimination" is utter bollocks.

KCSIE is also saying that schools should consider a suitable alternative option such as a separate room. Not should or must provide.

Yep. This is fine too. Thankfully the KCSIE guidance hasn't linked it to any legally incoherent bollocks. Meaning that the school can say no, if it doesn't consider this to be possible e.g. because there is no safe way of providing this.

The EHRC says that those who do possess the characteristic can't be forced to use correct sex facilities.

Yes, this is the bit that is bollocks.

BTW, I think it's great that your school has been able to provide a separate facility on a reasonable adjustment basis for a gender questioning child in this circumstance. It sounds like it is a safe facility for the child to use, which is key. My only caveat to it being "great" is that hopefully the school has taken steps to ensure holistic support for the child is in place, so that the child understands he/she isn't actually the opposite sex. It's not the school's place to provide the specialist mental health support (and potentially deliver OT or SALT provision - this would need to be delivered by OT/SALT teams via a written confirmation of needs and provisions in an EHCP) that addresses this but it is the school's statutory responsibility under the RSE guidance to ensure the child understands that they have a biological sex and that this can never change.

Edited for clarity.

I'd be interested in the sound comparison data.

As I've said, your concerns about medical emergencies are entirely valid. I'm not sure concerns about increased loitering are.