Telegraph reports schools face legal action

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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"

SecEd School toilets: Guidance and regulations
Written by: Paul Thorn Published: 15 November 2017
(extract)
"The correct directives to follow are actually listed in the DfE’s 2015 document, Advice on Standards for School Premises (see further information). This supersedes the outdated advice that still gets mooted around.

The updated regulations allow for more freedom, empowering schools to take greater control in how buildings are laid out. Regulation 23A in the DfE’s 2015 guidance simply outlines:

Handwash amenities must be located within close proximity to every toilet, while it’s imperative that washrooms are sufficiently well lit and properly ventilated.
Toilet blocks have to be easy to access for students and allow for passive supervision by staff, without infringing on privacy.
Separate blocks have to be available for girls and boys aged eight and above, except in the case of individual cubicles that are intended for the sole use of one child at a time.
For secondary school children, appropriate changing rooms and showers must be available for PE lessons.
Staff facilities should be separate from those used by students, although disabled toilets are allowed to be accessed by both students, staff, visitors and volunteers.
The key guideline to have in mind, however, is “British Standard 6465-1: 2006+A12009”, which states the appropriate number of units for secondary school children. This details:

Male toilet and urinals: one per 20 students while urinals should constitute no more than two-thirds of the boys’ fixtures.
Female toilets: one per 20 students.
Handwash basins: one per toilet/urinal where there are three or fewer fixtures. Two per three toilets/urinals where there are three or more fixtures. Toilets and urinals should be near to a handwash basin." (continues)
www.sec-ed.co.uk/best-practice/school-toilets-guidance-and-regulations/

Have the two policy documents referred to been superceeded?

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?

That's a great point.

R0wantrees, AFAIK that is still in place. However, CPS seem to be saying that in order to satisfy that EA, a trans child has the protected characteristic "gender reassignment" should be treated as though they are their acquired gender. So schools must have sex-segregated facilities, but trans students must be allowed to use the facilities for their acquired gender.

I disagree with the CPS interpretation - I do not believe that the EA ever considered the notion of a child having the protected characteristic of "gender reassignment". But until it is tested in the courts (probably right up to the supreme court) we actually can't know for sure.

Even if a child can be proven to have the protected characteristic of 'gender reassignment' as the EQA states, that still would need pushing through the courts again to decide whether this characteristic outweighs every other protected characteristic, or means that someone male must in every circumstance without exception be permitted to use female spaces even when this disadvantages and excludes female people, and defeats the entire purpose of having female spaces. Because that's where the CPS seem to have decided the law stands.

I don't remember voting in Stonewall as the ruling party.

PerfectParrot Thank you.
So is the CPS/Stonewall position is that their disputed interpretation of the Equality Act trumps the two pieces of guidance as well as Safeguarding principles which are sex-based?

Mockers if there is no such thing as a transexual child then why are schools making provision for them at all? Why don't children just follow the rules set for them within their own sex class.....I am staggered that so called officials have been hoodwinked so blatantly.

The closest thing I could find to what schools are advised by the government was this document:
class="underline">Guidancebooklet_2015.pdf
Which is linked in the government guidance here:
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/315587/Equality_Act_Advice_Final.pdf

Trans pupils and students are often told to use the ‘accessible’ facilities rather than those for their true gender. It may then be appropriate to rename these facilities using terms such as ‘unisex accessible toilets’, ‘larger toilet’, ‘toilet and changing facility’ or simply ‘toilet’ to reduce what is often perceived as the stigma of using toilets commonly identified as ‘Disabled Toilet’.
This will help ensure schools and colleges respect the dignity and privacy of both Trans pupils and students and also pupils and students with disabilities, whilst both ensuring everyone’s safety and protecting their self-respect.

If I were in charge of a school, I'd take the approach here. As it is the one recommended by the official EA guidance for schools.

Coyoacan. ‘IMHO a child under 18 cannot be trans’

I do not attempt speak for others experiences but I can say that by about 12 or 13 I had a wholly settled view of my gender identity as trans (having been working that through for myself for done years previously with little or no help). That is the same gender identity I have had to my present mid-50’s.

For workplaces, it is well established that the transperson has the right to use the toilets for their acquired gender, regardless of what building regulations say. CPS/Stonewall are simply saying that it is also true for schools.

March 2018 Transgender Trend article, 'Who Is Making Policy For Schools?' details how a school was pressured by a local trans support group founded by police officer, Gina Denham, to change its policies:

(extract)
"The whole campaign, from start to finish, took 6 days. No time to conduct a proper impact assessment on pupils protected under the protected characteristic ‘sex’ as the school is legally obliged to do before changing policy. How is this not in breach of Equality law? The pupil involved is legally male, not female, and single-sex provisions are lawful under the Equality Act, for reasons of privacy. The example of school facilities used in the Equality and Human Rights Commission Technical Guidance (3.20) does not state that a pupil protected under ‘gender reassignment’ as transsexual should be allowed to use the facilities of the opposite sex:

The way in which school facilities are provided can lead to discrimination. Example: A school fails to provide appropriate changing facilities for a transsexual pupil and insists that the pupil uses the boys’ changing room even though she is now living as a girl. This could be indirect gender reassignment discrimination unless it can be objectively justified. A suitable alternative might be to allow the pupil to use private changing facilities, such as the staff changing room or another suitable space.

King Edmund School is praised for showing “flexibility and openness to change” whereas in fact they were coerced by a campaign designed to intimidate and shame them for their ‘abusive’ policy of ‘discrimination’ and ‘segregation’, clearly risking damage to the school’s reputation. One tweeter even likened it to ‘apartheid.’

Although the final tweet proclaims ‘Everyone wins!’ Denham freely admits in this BBC report that the victory is only for the transgender student and everyone else’s needs and rights are unimportant:

“It’s about giving people the opportunity to use the toilet they are comfortable with, not what the school is comfortable with.” (continues)

www.transgendertrend.com/who-is-making-policy-for-schools/

For workplaces, it is well established that the transperson has the right to use the toilets for their acquired gender, regardless of what building regulations say. CPS/Stonewall are simply saying that it is also true for schools.

This was also the guidance in the 2017 NASUWT document,
'Trans Equality in Schools and Colleges Advice and Guidance for
Teachers and Leaders'

www.nasuwt.org.uk/uploads/assets/uploaded/085066bb-c224-40de-b79e2a1358801ee9.pdf

there are IMO a number of Safeguarding & legal issues within the document

NASUWT & Stonewall are two of the partners who have contributed to the CPS LGBT Hate Crime schools pack released this week.

current threads:
www.mumsnet.com/Talk/womens_rights/3804613-New-Year-New-Judicial-Review-CPS-Hate-Crime-Guidance-for-schools

www.mumsnet.com/Talk/womens_rights/3809302-CPS-school-hate-crime-guidance-we-must-complain

Robin - I see you're back on the thread. I'd really appreciate it if you could give answers to the questions I asked earlier. It's important to get clarity on this stuff.

it is well established
How was this established, and what was considered when establishing it?
that the transperson
How are you, or the law, defining this status?
has the right
How was this right established, who granted it, and what impacts were considered when doing so?
to use the toilets for their acquired gender
How is gender being defined, and at what point is it deemed to be permanently acquired?

Noting again that the guidance refers to Changing rooms as well, I think you'd be hard pressed to find non communal changing in schools.

ProdigalKitten this was ages up the thread but I wonder if the big boys boarding schools have been insulated so far from this by how early you have to register - candidates have to be registered before the end of the year they turn 10 so generally pre puberty and too early to be thinking about whether they are trans.

“It’s about giving people the opportunity to use the toilet they are comfortable with, not what the school is comfortable with.”

The word 'people' in that sentence is extremely disingenuous.

This is very specific about which people get to feel comfortable and which people can be desperately uncomfortable and distressed but must shut up and put up. There is no equality whatever in this. It privileges one group with completely unequal standards.

The word 'school' is also completely disingenuous as what the school is uncomfortable about is the total lack of care, consideration or regard for the needs of any other child but the trans one, and being forced against their judgement to ignore those childrens' needs.

Immoral. There is nothing progressive or fair or right about doing this to children.

RobinMoiraWhite We are talking about a legal issue and you are a barrister, but you answer me with feelings?

to use the toilets for their acquired gender
How is gender being defined, and at what point is it deemed to be permanently acquired?

In the NASUWT guidance linked earlier, I was somewhat shocked to read guidance for what might more often be described as male teaching colleagues who cross-dress:
(extract)
"Supporting Dual-role People
"Some people manage their gender dysphoria by living as a man or a woman in different aspects of their lives. For example, they may work in a male role but socialise in a female role.
Although the protected characteristic under the Equality Act is gender reassignment, it is best to assume that dual-role people are covered by perception that they might transition.
Like everyone else they deserve to be treated with dignity and respect.
In practical terms, there should be no issues unless the different
aspects of their lives overlap in some way. For example, a male teacher might want to attend a staff party as a woman. In that case they would probably prefer to use a female name and feminine pronouns, and they should be allowed to use the toilets appropriate to the gender in which they are presenting.
As referenced on page 4, it is always far better to ask the person concerned before applying any arbitrary label to them."
www.nasuwt.org.uk/uploads/assets/uploaded/085066bb-c224-40de-b79e2a1358801ee9.pdf

I am not sure that the NASUWT has considered the privacy & dignity of its female members

NASUWT are an interesting historical case. As their name suggests, they were two unions, the National Union of Schoolmasters and Union of Women Teachers, who both opposed the introduction of equal pay for men and women in the classroom, and when this provision came in, amalgamated.

January, I'm only really concerned with schools so I can't answer all your questions I'm afraid. The best I can do is link (yet more) government published guidance.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachmentdata/file/484855/Therecruitmentandretentionoftransgenderstaff-guidanceforemployers.pdf#page44*

a trans person should be free to select the facilities appropriate to the gender in which they present. For example, when a trans person starts to live in their acquired gender role on a full time basis they should be afforded the right to use the facilities appropriate to the acquired gender role.

In practical terms, there should be no issues unless the different
aspects of their lives overlap in some way. For example, a male teacher might want to attend a staff party as a woman. In that case they would probably prefer to use a female name and feminine pronouns, and they should be allowed to use the toilets appropriate to the gender in which they are presenting

Its a shame that JackyH can no longer post here as she provided useful clarification:

HT
"Except that UK case law says otherwise. If a person does not have a GRC they should be treated the same as everyone who is of that same natural sex. Thus, a male who transitions should be treated the same as any other male and vice versa. Anyone can ask to inspect a person's birth certificate to check the sex reference. If a male who transitions has a BC that reads as male he should be treated as a male.

There is no law about his use of toilets so there is zero requirement to allow him to use any of the women's facilities, even if he does have a GRC. It only takes one woman to "reasonably object" to have any man removed from any women's facility / service.

EqA, Schedule 3, section 27, subsection 6: (6)The condition is that—

(a) the service is provided for, or is likely to be used by, two or more persons at the same time, and

(b)the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex."

I must admit I don't quite see how the human rights of transgender people entitle them to use the facilities of the opposite sex. I feel like it is a par with me demanding access to disabled facilities because, as a woman, I am also protected by the EA.

And talking of people who are disabled, will the schools channelling gender non-conforming children to the disabled toilets be providing more disabled toilets?

Male & female toilets shouldn't be only for those who conform to gendered expectations/sex-based stereotypical presentation.

What is an "acquired gender role?"