EHRC consultation - schools technical guidance

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. 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.

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

KCSIE presumably doesn't say here that the child can't be forced to use the correct sex facilities because KCSIE says that not all gender questioning children have the protected characteristic of gender reassignment, so there may be gender questioning children who don't want to use the correct sex facilities who don't have the protected characteristic. The EHRC says that those who do possess the characteristic can't be forced to use correct sex facilities.

Offer is there @noblegiraffe . I have pulled together scientific articles, academic research, real life incidents, done FOI requests to retrieve information, coroner reports, police data. Edit to say there’s some sound comparison info too.

I am an ex-teacher, and I know this is economically a strain for schools. It’s a problem for schools that installed toilets in good faith not knowing the origins of these designs, and that they were put in despite known risks and without proper assessment.

The KCSIE wording is very different from the EHRC wording and definitely doesn't disagree with MrsO.

I've bolded the key words in the paragraph you quoted that demonstrate how it backs up what MrsO is saying.

117. If a gender-questioning child does not want to use the changing rooms and showers designated for their sex, schools and colleges should consider whether they can provide an alternative changing or washing facility without compromising the provision of single-sex facilities. This could be a fully enclosed room – for use by one child at a time that can be secured from the inside – or by allowing access to facilities at an alternative time. These alternative arrangements should not compromise the safety, comfort, privacy or dignity of the child or of any other children.

That's in direct contrast to the EHRC which is saying that it's likely to be unlawful indirect discrimination against the PC of gender reassignment if the school doesn't provide these facilities. The EHRC is talking legal nonsense on this point. The PC of gender reassignment has no bearing whatsoever on which facilities a child uses when the facilities are segregated by sex.

We have talked a lot about toilets, I know!

I think you said that one of the problems was a complete lack of data collection around incidents in school toilets so it would be extremely hard to make a fair comparison between what went on in old-style toilets and new-style toilets, particularly in terms of loitering, bullying, smoking, sex, drugs etc. I mean I know all that went on in the old ones and still goes on in the new ones. The videoing under doors and throwing stuff over doors did go on but has stopped. Vandalising the sinks and flooding the toilets has decreased now they're open to the corridors.

I totally understand what you say about medical incidents in toilets and the safety aspect around not being able to see what's going on inside a cubicle - that's a real, pressing and valid concern.

But to suggest that the new-style toilets are causing problems like loitering, vandalising, vaping, drugs, bullying as if the old-style toilets didn't have those issues just isn't my experience.

I have known your username for a long time on here @noblegiraffe and know your intentions are good. I would be delighted to send you my research so you can read for yourself what is worst. PM me.

School toilets have always been used for loitering, bullying, aggression, sexual activity and drugs. They used to be used for smoking, now that's more likely vaping. Shitting in the sinks, or stuffing them with toilet roll and flooding the toilets is unfortunately quite common.

Gaps in toilet doors put kids at risk of having someone take photos/videos of them through the gap. Gaps at the top put kids at risk of having stuff thrown at them while they can't move out of the way and can't see who is doing it.

Floor to ceiling doors and open sink areas have solved some problems and caused others. I wouldn't like to say which option is better or worse.

Thank you for adding that link @MrsOvertonsWindow . As you know, I collate incidents that happen in toilets, and focused on schools because of the massive design changes.. Of course there are real life repercussions to adding private mixed sex spaces to schools, which don’t just affect children with ambulant disabilities, those having a medical crisis including mental health crisis, but also to girls.
It seems schools used to be aware of this - the unisex toilet was opposite reception.

Adding MIXED SEX, PRIVATE SPACES to schools causes so many problems.

I see no reason why history won’t keep repeating itself if a school adds these toilet mixed sex, private designs. Pupils will be pushed/led in there or go willingly with another for sex. As well as safeguarding issues it’s then potentially a crime. Pupils will go in there for ‘dirty protests’ - smearing etc. And of course drug use - sharing as well. They will take up so many teaching hours to watch.

Hidden camera use is on the increase and these designs facilitate this in pupil and staff toilets. Ironically schools have put all sorts of monitoring systems in these private cubicles and rooms like heat monitors which I still don’t know the legalities of but seems like it’s breaking some law?

When schools have to buy in alarms that are specially targeted at ‘gender neutral’ designs, it’s a sign not to add any more of these designs? This is an advert from a company that started selling their alarms in the UK. It doesn’t mention the pre-loaded phrases a pupil can shout to push a text message onto staff phones. The recommended ones are ‘stop it’ and ‘help me’. Schools have then been known to turn ‘smart’ alarms off because of misuse.

KCSIE disagrees with you though. It says almost the exact same thing as the EHRC guidance.

The EHRC guidance says "A secondary school is considering how to provide appropriate changing facilities for a trans pupil who identifies as a girl. The school must provide single-sex changing facilities and showers for children who do physical education at the school. It is therefore not permissible to allow the pupil to use the girls’ changing room. The school decides that the pupil must use the boys’ changing room. This is unlikely to be justified and so is likely to be unlawful indirect gender reassignment discrimination. A suitable alternative might be to allow the pupil access to a single-user, lockable changing room, which might be a staff changing room or a mixed-sex accessible bathroom."

And I've attached an image of what KCSIE says because it wouldn't let me copy and paste for some reason.

Neither of them say that this is what should happen.

Weirdly, that's exactly the link I was about to post @MrsOvertonsWindow !
Specifically, it was this section that jumped out at me:

Can parents ask for adjustments to be made for children who aren’t disabled?
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.

I had been thinking about reasonable adjustments overall, after reading the pertinent points you raised about school layouts etc. I did some googling and that was the blog that I found.

Sometimes well intentioned plans unintentionally make matters worse by reinforcing an unhelpful behaviour rather than helping children grow and develop through the phase iyswim.

This makes a lot of sense. In the case where a child is distressed about changing in the facilities that are designated for their sex, because they identify as the opposite sex, treading this path sounds particularly difficult. The distress is no doubt real and if a safe, reasonable adjustment can be made to accommodate a third space this seems ok, as long as it is part of a bigger plan to help this child understand that their sex is real. This would mean joined up care with mental health teams to make sure that the provision of this third space does not reinforce the child's belief that their body is wrong for them. And making sure that the school isn't perpetuating this by creating an environment that promotes affirmation of opposite-sex identity as an example of respect.

Joined up support may possibly also include OT (for body grounding exercises) and SALT (for language processing on what it means to "be" male or female vs stereotypes) if the child is autistic.

Coming back to the guidance, it really is appalling that the EHRC wants to tell schools that they risk being found discrimatory if they don't provide third spaces. There is no law under which this could be true and no obligation whatsoever on schools to legally provide these. Instead, some carefully worded guidance could say something like:

"If a gender questioning child is too distressed to use the single-sex facilities that are congruent with their sex, the school may consider whether reasonable adjustments could be made, such as a single occupancy additional space. If considering this as a reasonable adjustment, schools must only do so if the child's wider safeguarding needs can be met"

The rest would need to be in KCSIE. What I'd love to see in the KCSIE guidance is far more joined up thinking about the impact of schools allowing staff to put preferred pronouns in their email signatures (e.g. this signposts the idea that children might want to identify as the opposite sex) and a clear link to autistic children's vulnerability to being ill at ease with their body changing during puberty and a vulnerability towards conflating sex-based stereotypes with what it means to "be" male or female.

Thanks KTS for reminding us of the critical issues that some children face that need reasonable adjustments - especially for illness and physical disabilities.

There are particular issues for schools in relation to mentally vulenrable children. The available national data about this group of children shows the majority have numerous other mental health co morbidities - anxiety, eating disorders, suicidal ideation etc.

Schools must ensure that the reasonable adjustment isn't counter productive and makes matters worse. A child with suicidal ideation is a child who a school will need eyes on at all times. You can't have that child wandering the school, isolated from peers during the day for safety reasons.

That's why the technical guidance is so flawed. It may be reasonable / appropriate for a girl confused about her sex and with an eating disorder to change separately from the other girls. Or it may be a catastrophic decision that only embeds her sense of difference and encourages alienation from her body and her peers. To make that judgment you need the advice of those trained in child psychology, wellbeing and knowledge of how to keep suicidal children safe during the school day.

Sometimes well intentioned plans unintentionally make matters worse by reinforcing an unhelpful behaviour rather than helping children grow and develop through the phase iyswim.

Link for anyone interested in how reasonable adjustmenst work in schools:

educationhub.blog.gov.uk/2023/04/what-are-reasonable-adjustments-and-how-do-they-help-disabled-pupils-at-school/

Yet I have parents asking for help because they are so worried about their child going to school with allergies/epilepsy/diabetes/heart conditions/brain injuries and there’s no safe toilets as they are all fully enclosed designs.

I have had desperate parents asking what the law and regulations are on this.

Are you an adult or a child who attends this school?
If you read my posts I've said it shouldn't be in national guidance as it's not possible in numerous schools and given very clear safeguarding, practical and ethical explanations as to why.

So if it's possible, and easily implemented, you do support it as a reasonable adjustment?

I've never claimed it's impossible. I've stated that the suggestion is shot through with problems and you don't issue national guidance schools that's a potential safeguarding hazard, interferes with a child's curriculum entitlement, can make them repeatedly late to a lesson, requires expensive adult supervision that will negatively impact on other children.

A school may have a space that can be safely used by a single child without encountering any of the potential hazards that schools MUST take into account when children are unsupervised in the building. If you've worked at a senior level or been a DSL then you should be familiar with the school's responsibility for every child's safety all day long and how schools ensure this.

These poor girls (or boys) being gaslit by extreme transactivists that their bodies are so wrong that they no longer have a place in the appropriate changing room. The levels of introversion are off the scale and deeply unhealthy for children and adolescents.

And now none will let boys change with the girls, or vice versa.

I mean, I don't think mine is the only school that it works for.

Schools have been dealing with the stuff for years and not all of them have let boys change with the girls.

But what if there was more than one pupil in a class needing this adjustment? How many separate changing places should a school make available? Where would the pupil store their belongings?

But equally you can't claim that it's simply impossible and shut down any conversation about the possibility of it happening.

If it is possible, do you support it as a reasonable adjustment?

That's one school. I can name countless schools in a number of LAs that would struggle to offer a safe alternative space to change. You can't promote national guidance on the basis of one school. 😀

Edited to add I'd be horrified to see any school using an expensive teacher to supervise. They'd likely take a TA away from their alloted time with a child / class and use them.

I get that these options seem simple to those unfamiliar with schools

I literally work in a school where a third space is offered and it's not a random adult toilet miles away from anywhere that needs supervising by a bored teacher so the insistence that it has to be is rather baffling.

Children confused about what sex they are don't need shuffling off to a random toilet used by adults somewhere else in the school building. Not even when accompanied by an adult removed from their core role of working with other children, having to stand outside said toilet twice in a lesson. In addition to the other adult not being late, they have to work out where child will store their clothes / valuables while they're participating in a PE lesson (that they're likely to be late to having changed elsewhere in the school.

I get that these options seem simple to those unfamiliar with schools which is why it's a shame the guidance is not informed by education good practice or school safeguarding. If changing rooms are unsafe - and they can be areas that some children when asked will identify as areas of potential bullying - then the school must address that as it's unacceptable. You don't resolve that by hiving off children who feel unsafe - you eradicate the bullying..

Sorry for the tedious details but for those who don't work in schools, it's important to understand how they actually work. So many of these demands are unworkable and aren't in the interests of children or schools - just based on adult transactivist fantasies.

There is a clear prohibition against the first so why would I be suggesting it?

We agree that separate changing facilities are acceptable, others on here do not.

If a pupil is so distressed by changing in the facilities and playing in groups of their sex, then therapy is needed isn’t it? Are you suggesting just because a pupil is distressed at changing with other members of their sex, other pupils should be made uncomfortable by having a pupil of the opposite sex change with them, or the student should be given separate changing facilities? The second is acceptable, the first is not.

Having gaps in toilet doors isn't a safe utopia either though. There are no risk-free options when it comes to school toilets, it's a case of choose your poison.