Telegraph reports schools face legal action

[BovaryX]

The Telegraph reports that schools face legal action if they prevent trans children from accessing the toilet of their choice. It cites the new guidance from the CPS

Schools have been warned by prosecutors that they could face legal action if they fail to allow transgender pupils to use their preferred lavoratories or changing rooms. A new guidance document for schools, drawn up by the Crown Prosecution Service (CPS), advises teachers that excluding trans pupils from “particular facilities” could be seen as “indirect discrimination” if it is not “justifiable as a proportionate means of achieving a legitimate aim"

We can hear the lecture. I also still disagree with your interpretation of the law and respectfully suggest Barracker had a point.

The legitimate aim and proportionate means around single sex spaces has long been a topic of conversation here and many posters have provided clear legal basis for understanding both terms.

I'm not sure what counts as doxxing so I won't link, but I see someone with your name unsuccessfully acted for a trans client in a high profile discrimination case last year.

Can you cite where you've successfully acted to defend the sex based rights of women and girls (natal)?

QuiteGood. Yep, that was me. I’m sure a trawl through newspaper archives will find other instances of my practice. But it’s not for me to publicise those who I have acted for, and especially not those who come for advice. I assure you I have acted / advised on both sides of the debate. You will have to take my word for that.

If it's in the public domain, what's the problem?

This is a deliberate and provocative push from the current right wing government which is designed to provoke a backlash towards the entire LGB community

Funny how letters from the acronym can be easily dropped and added depending on the argument being pushed...

I queried the law on this on another thread and someone brought up Building Regulations that require separate toilet facilities for boys and girls aged 8 and over, unless a separate lockable room (cubicle presumably not good enough).

How does this square with that?

Robin, some of the posters in this forum are also legal experts. We are not all 1950s housewives, who should really be swapping recipes and talking about brands of nappies.

Personally I think that as women one of our major concerns is the wellbeing of all children, including boys and gender non-conforming children, because very few men, especially those in power, give two hoots about them.

IMHO, a child under 18 cannot be trans.

This is a deliberate and provocative push from the current right wing government which is designed to provoke a backlash towards the entire LGB community

I don’t think the LGB alliance, founders of Stonewall - Simon Fanshawe etc and those concerned about the erasure of lesbians/gays, the cotton/boxing ceiling will agree with you.

I suppose I get frustrated when I see patently incorrect statements about what the law IS. (And ‘guidance’ that is built on myth or misinterpretation or wishful thinking

Could you please clarify which law mandates that trans children must be allowed access to girls' toilets at their school?

I’ve been visiting secondary schools as have a y6 child and a brand new school has unisex toilets. It is a floor to ceiling individual cubicle that can be seen from corridor which I think is brilliant. My only complaint about that was the sinks are outside so as a girl wanting to clean up during period it would be better to have an all in one unit with sink in.

I do feel that trans people should be able to use what they identify with however there has to be something to protect the non trans people who feel uncomfortable with someone who on the outside looks like a member of the opposite sex.

I work in a school and so much drama happens in the toilet at lunch times that some children make themselves ill by not drinking or holding onto their wee all day which is not healthy at all.

Until purpose built facilities that offer privacy for all then sadly it needs to be the disabled toilets for the mean time

Robin - thanks for joining us on here. It's good to have someone with legal expertise on here.

I'm not a lawyer, and have a question. My understanding based on reading about this is that gender identity isn't a protected characteristic under the Equality Act.

Gender reassignment is, however, protected, but my understanding again is that a trans child under the age of 16 wouldn't fall into that category because technically they are too young to have started the process of reassignment. I realise that reassignment can also include "intending to reassign" but can a child under 16 rationally be said to be "intending to reassign"? Do we have any evidence yet for how this has been interpreted in the courts in relation to under-16s?

Doesn't the law also say that schools have to provide single-sex facilities for children over the age of eight?

a trans child under the age of 16 wouldn't fall into that category because technically they are too young to have started the process of reassignment. I realise that reassignment can also include "intending to reassign" but can a child under 16 rationally be said to be "intending to reassign"?

Intending, or beginning the process?

Possible Gillick Competence question here, or alternatively it's contractual and so not available to minors.

Not sure if this can be said on here, but I agree there is no such thing as trans child-only confused children whom adults are telling them they are trans.....this is the huge elephant in the room that needs to be bought into the open-otherwise the next generation of potentially gay & lesbian kids will be surgically & medically altered unnecessarily.

Not sure if this can be said on here, but I agree there is no such thing as trans child

I said that and I'm still here.

A Transman or woman in UK law is defined by the 2010 Statute as someone with a GRC or possibly in the process of acquiring one.

Mockers No need to worry about Gillick Competence (my bold):

The policy of Rotherham NHS Foundation Trust states: “Where appropriate the wishes of the parents must be considered, but in the case of young people their preference should prevail.” It adds: “In some instances, parents or those with parental responsibility may have a view that is not consistent with the child’s view. If possible, the child’s preference should prevail even if the child is not Gillick competent.”

From this Telegraph article

...So now we have "Gillick Incompetence."

Oh goody.

It's worth remembering that this discussion also includes changing rooms. And many (likely to be a majority) of school and many sports changing rooms are all open plan. So the 13 year old changing for swimming (an act that usually involves stripping naked) is forced to undress in front of any adolescent boy who self identifies as a girl - if it's the mixed age swimming team the 12 year old girl may be undressing with the 17 year old male identifying as a female. Evidently there is no one in the CPS who has a problem with this?

...Building Regulations that require separate toilet facilities for boys and girls aged 8 and over, unless a separate lockable room[...] How does this square with that?

That same requirement is in the building reg guidance for workplaces. Yet as part of the EA, an example is given that an employer must allow somebody with the protected characteristic of "gender reassignment" to use the facilities for their chosen gender. It could be argued that there's no reason it should be different for children in school.

Personally, I'd argue that children and teens deserve special protections for their dignity and privacy, and that a "third space" for those who are questioning their gender identity would be a proportionate response. Others disagree though, and it hasn't (afaik) been tested in law so there is no definitive answer.

So, my first question about the Equality Act was the gender reassignment one.

Second question is the single-sex provisions. The Equality Act says it's fine to have single-sex spaces that exclude the opposite sex if it is a "proportionate means to achieve a legitimate aim". (Sex refers here to biological sex, so wouldn't include a teenager identifying as the opposite sex.)

Now it seems to me that protecting girls from being harassed by boys in changing rooms, toilets etc is a legitimate aim. Not only is it a legitimate aim it is - surely - a legal requirement. Schools can fail an Ofsted inspection if their safeguarding is inadequate. So protecting girls from harm must, I'd have thought, override the desire of trans children to use the toilet of the sex they identify with.

And as others have said, schools are legally obliged to provide sex-segregated toilets from the age of 8.

So the question for Robin is: have I misunderstood? If so, can you tell me where I'm going wrong?

The CPS has no fucking idea what the law actually says! Do something, Government! They're deliberately lying about the content of laws you passed! Fucking hell!!!!!

I suppose I get frustrated when I see patently incorrect statements about what the law IS. (And ‘guidance’ that is built on myth or misinterpretation or wishful thinking.)

RobinMoiraWhite Couldn't agree more. Have you taken Stonewall to task on the the untruths they are propagating about the Equality Act?

I can't understand why the CPS is giving advice about discrimination law in the first place. It is civil, not criminal law so why is it a matter for them?

I believe the EHRC have corrected their own guidance which now correctly references the single-sex exemptions and makes clear that the law does not give trans people the unqualified right to access the facilities of their choice.

I queried the law on this on another thread and someone brought up Building Regulations that require separate toilet facilities for boys and girls aged 8 and over, unless a separate lockable room (cubicle presumably not good enough).

How does this square with that?

God knows. It's as if existing guidelines and laws can be ignored if they are inconvenient to certain groups.