EHRC consultation - schools technical guidance

What disappointing guidance. I found it very strange that they said they wanted public conversation on "whether we have accurately reflected the law" and are specifically asking for lawyers to participate. I'm hoping this is some kind of hostage-style secret message to say "HELP! We've been forced to misrepresent the law and we need someone to notice!"

IANAL but this.....

A secondary school is considering how to provide appropriate changing facilities for a trans pupil who identifies as a girl. 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.

... sounds like utter bollocks. In this example the child is male. Expecting the child to use the male changing room is treating the child equally amongst all males. What the child is wearing or whether the child identifies as a girl is irrelevant. I imagine it would be (direct) gender reassignment discrimination if the school told the child it was only possible to enter the changing rooms if wearing trousers (rather than a skirt) or if declaring oneself to identify as a boy. But there is no indirect discrimination if facilities are separated by sex whilst also being inclusive i.e. you are welcome whatever you wear and regardless of any self-described gender identity.

Where a child is genuinely distressed about using the facilities that align with their sex, I agree with NotTodayTy that third spaces could be a solution and with noblegiraffe that this could be managed as a reasonable adjustment. But the key to this being viable as an alternative is that safeguarding is prioritised. For example if there is a unisex toilet behind reception, meaning that there is always an adult outside it, great - that's reasonable.

It would not be reasonable (in the context of a reasonable adjustment) to put a child at risk e.g. entering a facility which may be a less safe space. In this circumstance I would expect the school to inform the child that no reasonable adjustment could be offered. No school should be told they are under any legal obligation to always offer an alternative - what law forces them to do that?

And as for telling schools they might want to get LGBT charities in to help them navigate situations.... WTAF? Is this Stonewall coming back like a Japanese knotweed tendril? I thought we'd got rid of all the nonsense where "expert" charities can deliver their own special interpretation of the law to schools.

Edited for typo

Can a school legally have uniforms segregated by biological sex? So they could eg. ban all biological boys from wearing skirts like many did with girls wearing trousers years ago (doesn't happen nowadays but times have changed). In Scotland I think "gender neutral" uniform are legislated.

The recent schools banning skirts did so for both sexes so technically "equal".

Indeed, but it is the law.

I’d add that this seems to muddle having a protected characteristic with experiencing severe distress at using correct sex facilities. That isn't the same

No, but if the distress caused by using the correct sex facilities is due to something that is a protected characteristic, then schools would have to be extremely careful in how they deal with it.

I can't help but feel that ECRC has wandered into this space without doing all their homework.

Yes. Of course this also throws up curriculum entitlement and the implications of certain children missing out on curriculum time due to needing to change in a different place that needs to be supervised by an adult x2 in a lesson. If that child is then always late for their following lesson that also has various implications. There are so many variables when you try to set up different practices from the norm in a big school which is why lawyers with limited understanding of legal issues re schools shouldn't be writing this stuff.
Sadly they are and it's dumped on schools to try to make it work.

Schools can be very creative when trying to make reasonable adjustments but these are often (not always) funded / resourced in some way.
This isn't.

A 1,000 plus intake school with one child confused about their sex might manage it easily. A school with issues of social contagion and as many as 10 or more children might logistically struggle.

Agree with the other posters. I’d add that this seems to muddle having a protected characteristic with experiencing severe distress at using correct sex facilities. That isn't the same, and not all do even adults.

It also seems to be adding a huge burden on schools to provide a third changing space, i.e. for supervision.

I.e. you've got two changing facilities for PE, boys and girls and usually one staff member in each. How does it work with a child who now they legally expect to be in a third one?

If it's very distressing then arguably alternative arrangements need to be considered. However that isn't necessarily a third changing space.

I.e. at secondary school they might be expected to change before the lesson in the break in a gender neutral loo for example.

That would be easier as then that's part of the same loo arrangements rather than needing to create and keep an eye on a third changing space.

And this bullshit is supposed to apply to a toddler, an 8 year old or a teenager as well as the adult agp man. All schools, nurseries, primary, special and secondary schools, are expected to suspend their critical faculties and safeguarding requirements and silently watch while adults transition children too young to speak in some cases, let alone to consent. As well as ignoring the impact that these lies have on young peers.

Of course it's a nonsense but it's only become apparent as we watch the EHRC producing dangerous to children "guidance" that undoes some of the recent improvements.

But intending to pursue a gender change and intending to get a gender recognition certificate aren't the same thing.

Many trans people don't have a GRC but have a passport, driving licence etc in their trans identity so you can't really say that the haven't changed their gender just because they don't intend to get a GRC.

No, the solution is quite obviously third spaces for children with gender dysphoria who are significantly distressed at the idea of using the ‘correct’ facilities

I don't think the state is very firm that children can't transition at all? There is definitely scope for 'social transition' in KCSIE and still children on medication. Or do you mean get a GR certificate?

It's a massive contradiction isn't it? I know that the State has slowly understood that we've failed children / young people by enabling so many of them to buy into all this. But until we collectively face up to the nonsense that children of any age can have the pc of gender reassignment, we'll continue to allow transactivists to use children to promote the notion of changing sex.

It's a mess and caused by naivety and an unawareness of what was being proposed by advocates back in the day (as evidenced via the Denton's report)

This technical guidance is an embarrassment - you only have to look at the incoherence of some of the sections quoted upthread. But it's also dangerous as it seeks to undermine the steps the State has taken to reintroduce safeguarding to this vulnerable group of children. Whether there's the "power" and political will to address this who knows. Children are very low on the priorities of those in power compared to pandering to men wanting access to women and children when they're vulnerable.

Sure, but the purpose of the technical guidance is to interpret the law as it is for schools. Saying that the law-as-it-is is an ass and should be different doesn't mean that schools should be directed to behave as if the law was as an external organisation want it to be instead. I mean, that's what Stonewall have been strongly criticised for doing all along.

Schools often make adjustments for pupils. We have kids who can't wear a tie (sensory) or who can't attend assembly (anxiety) or who jump the lunch queue (autism). What is the legitimate argument that a kid who can't cope getting changed in the correct sex changing facilities (gender dysphoria) should be forced to use those facilities or otherwise not participate in PE? Suggesting that allowing them to opt out of those facilities is discrimination as Sex Matters do doesn't make sense to me when we make similar adjustments for other pupils with other needs.

I agree that the protected characteristic of gender reassignment is a mess and needs revisiting. It is extremely woolly as to whether it applies to people who identify as non-binary ("sometimes, possibly") for example. I'm not sure how it could be legally tackled to remove this protection from children though, when it doesn't matter if the child is actually trans or not to have it (i.e. the belief that there is no such thing as a 'trans child'), they just have to be perceived to be trans, which obviously some children are.

Thanks for clarifying.

No, I do not believe I have changed biological sex. I use transsexual because the term transgender doesn’t sit right with me or reflect my experience. I believe that dysphoria is a requirement for being ‘trans’ and that the end goal is to blend in as much as possible to not cause a fuss.

Interesting that you say transsexual not transgender. Do you actually believe you have changed sex?

Children are entitled to grow and mature without being gaslit that their bodies are wrong but a sex change is the cure.
What matters is that children are allowed to develop and mature until they have developed the intellectual and critical thinking skills to navigate adult life. That their responsible adults safeguard them from those who seek to influence them into believing that the challenge of adolescence can be waved away with a sex change.
And that self interested adults understand that their personal experience cannot and should not be applied to children generally in the interests of promoting an ideology.

How does one become a trans adult if a trans child does not exist?

I’m an adult and transsexual. I felt the same way before becoming an adult, so what was I if not a trans child?