Trans guidance from The Key (advice for school leaders/governors)

[AskAClerk]

Could anyone tell me if the following advice is correct in legal terms please? It is from The Key which is a very popular advice site for school leaders and governors. The full article is behind a paywall but is here if you have a subscription: schoolgovernors.thekeysupport.com/curriculum-and-pupils/pastoral-care/equality-inclusion/supporting-trans-pupils/

When the quotes talk about page numbers they mean this toolkit: www.allsortsyouth.org.uk/resources/toolkits-booklets-guides which seems to form the basis of much of the article.

"Toilets

Pupils have the right to access the toilet that corresponds to their gender identity, and to refuse to allow this is likely to amount to discrimination under the Equality Act."

"Changing facilities

Your school should discuss the use of changing rooms with pupils who are trans and assess their needs on a case-by-case basis. In all cases, pupils should have access to the changing room that corresponds to their gender identity. If any pupil has a need or desire for more privacy your school should provide alternative arrangements. This could mean having a different changing area, or a separate time to change.

Any alternative arrangement should be provided in a way that protects the pupil's ability to keep their trans status confidential.

If parents or carers raise concerns about pupils who are trans using toilets and changing facilities that correspond to their gender identity, the school should reassure them that its approach is supported by the Equality Act and is not a safeguarding issue (page 16 and 30).

Page 34 looks at a scenario where a parent raises a concern about changing rooms. It explains that the school should not remove the pupil who is trans from the changing rooms. Instead the school should work together with the parent raising the concern and their child to find a solution. It's important that staff support both pupils who are trans and other pupils to feel comfortable around one another and ensure the safety and wellbeing of all."

Pupils have the right to access the toilet that corresponds to their gender identity, and to refuse to allow this is likely to amount to discrimination under the Equality Act."

No. The protected characteristics under the EA are sex and gender reassignment (which under 18s cannot have). The EA is quite clear that it is lawful to exclude someone on the basis of "legal gender" (having or intending to get a GRC) where a proportionate case can be made that sex is the relevant factor for providing the facilities.

Your school should discuss the use of changing rooms with pupils who are trans and assess their needs on a case-by-case basis. In all cases, pupils should have access to the changing room that corresponds to their gender identity.

As above - with the additional comment that where the changing rooms are open plan, I would have thought deciding not to force girls to be naked with a teen with a penis was even more likely to come under the heading of "proportionate need". (Can't remember the exact wording, and IANAL).

Actual legislation here:
www.legislation.gov.uk/ukpga/2010/15/contents

'Your school should discuss the use of changing rooms with pupils who are trans and assess their needs on a case-by-case basis. In all cases, pupils should have access to the changing room that corresponds to their gender identity. If any pupil has a need or desire for more privacy your school should provide alternative arrangements. This could mean having a different changing area, or a separate time to change.

Any alternative arrangement should be provided in a way that protects the pupil's ability to keep their trans status confidential.'

In a school, where the children know each other, how on earth do they expect that a trans status wouldn't be completely known by everyone?

Even with a new student. In communal changing, how do they expect anyone not to know the sex of a trans child?

Yet they seem to think that giving them alternative more private arrangements might be the thing that 'outs' them?!

Did they even give a passing thought to anything at all when they were writing this obvious bollocks?

Obvious bollocks being key, I'd say

Yeah I thought about putting no pun intended when I read it back after posting

I am pretty sure that girls are entitled to single sex loos at schools above aged 8. Safe Schools Alliance has good advice/info.

Yes they are, legally.

How that got steamrollered is really interesting and worrying.

I find it bizarre that the resource mentioned would be concerned about a trans girl being outed if they wanted individual changing, but not if they go in the communal changing for swimming. Ditto a trans boy.

It's drivel.

Gender identity tutu is not a protected characteristic, gender reassignment is a protected characteristic and this is a lengthy process involving psychologists and gender dysphoria. Sex is also a protected characteristic which is why females are entitled to female only spaces.

Cara just to be clear, the protected characteristic of gender reassignment can apply to under 18s, but under 18s cannot get a Gender Recognition Certificate so can not change their legal sex.

This is what the Equality Act says about single sex services. I've put in bold the relevant parts for loos and changing rooms:

27(1)A person does not contravene section 29, so far as relating to sex discrimination, by providing a service only to persons of one sex if—

(a)any of the conditions in sub-paragraphs (2) to (7) is satisfied, and

(b)the limited provision is a proportionate means of achieving a legitimate aim.

(2)The condition is that only persons of that sex have need of the service.

(3)The condition is that—

(a)the service is also provided jointly for persons of both sexes, and

(b)the service would be insufficiently effective were it only to be provided jointly.

(4)The condition is that—

(a)a joint service for persons of both sexes would be less effective, and

(b)the extent to which the service is required by persons of each sex makes it not reasonably practicable to provide separate services.

(5)The condition is that the service is provided at a place which is, or is part of—

(a)a hospital, or

(b)another establishment for persons requiring special care, supervision or attention.

(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.

(7)The condition is that—

(a)there is likely to be physical contact between a person (A) to whom the service is provided and another person (B), and

(b)B might reasonably object if A were not of the same sex as B.

(8)This paragraph applies to a person exercising a public function in relation to the provision of a service as it applies to the person providing the service.

Separate schools legislation also requires toilets to be single sex:

Regulation 4 — (1) Subject to paragraph (3), suitable toilet and washing facilities must be provided for the sole use of pupils.
(2) Separate toilet facilities for boys and girls aged 8 years or over must be provided except where the toilet facility is provided in a room that can be secured from the
inside and that is intended for use by one pupil at a time.
(3) Where separate facilities are provided under paragraph (1) for pupils who are
disabled, they may also be used by other pupils, teachers and others employed at the school, and visitors, whether or not they are disabled.
(4) Suitable changing accommodation and showers must be provided for pupils aged
11 years or over at the start of the school year who receive physical education.

A couple of local authorities have withdrawn their toolkits following judicial review.
www.google.com/amp/s/www.bbc.co.uk/news/amp/uk-england-oxfordshire-52439496

Doesn't the new DfE guidance effectively prohibit schools from working with organisations like Allsorts? Because now schools aren't allowed to work with any organisation that suggests you can be born in the wrong body or that non-conformity to gender stereotypes means a person is a different gender. It's worrying that The Key is using this material as loads of schools use it as their "go-to" and the information its giving is non-compliant

Yes but I expect these high guidelines take an awful long time to filter down.

This is identical to all the trans guidelines that remove safeguarding from children.
Safe Schools Alliance have some excellent resources here:
safeschoolsallianceuk.net/resources-2/factsheets/

Take a look at their criticism of Oxfordshire's guidelines. It's also worth knowing that countless local authorities and the CPS have withdrawn their toxic guidelines on being challenged to explain them in court. They've withdrawn them - evidently realising that removing the rights of girls to single sex spaces and undermining safeguarding just won't stand up in court.

I am fairly sure advising the school to actively LIE to parents who complain about mixed sex changing/loos is not going to end to well for the school.

If parents or carers raise concerns about pupils who are trans using toilets and changing facilities that correspond to their gender identity, the school should reassure them that its approach is supported by the Equality Act and is not a safeguarding issue

Thats totally false about the equality act, which actually stated single sex areas must be provided, and how the hell can you just 'reassure them its not a safeguarding issue'?! When..it is. Clearly.

Sick of this nonsense, various groups misrepresenting the law in this way. Its dodgy as fuck, and still its denied it even happens, despite there being copious proof of it happening. But no, places are just getting it wrong by mistake, fuck all to do with groups actively advising schools to NOT follow the law

The only time it IS in line with the equality act, is if, for example..a female child decides she is trans. It would be against the equality act to tell her she can no longer use female areas, as that would be excluding her from the area because she is trans, which is wrong. Ditto changing. A 'transboy' with girls would also not be a safeguarding issue as the child is female, obviously.

However, this seems to be arguing the total opposite of this, like usual.

@AskAClerk are you a teacher or governor?

Or maybe the OP is a clerk to governors? That's such a responsibility for advising governors if they are.
Hopefully OP this thread has pointed you in the direction of organisations that focus on child safeguarding and following the law - rather than those useful idiots who are following the demands of all the adult pressure groups determined to mangle the law and catastrophically, to undermine child safeguarding.

Yes some great advice here.

As well as Safe Schools Alliance resources Transgender Trend have some great resources too.
www.transgendertrend.com/schools-resources/

This is really concerning as many school governing boards will take the key to be correct on issues such as this.

Has anyone complained to them or pointed out the issues?

It's completely untrue. My guess is that whoever wrote it has been Stonewalled. Or it might even have been written by Stonewall. Someone needs to write to them and explain that they are encouraging schools to break the law.

They've been 'Gires-ed.'

At the very least the Key should be warning school leaders / governors about all the illegal / unsafe 'trans' guidance that is being currently withdrawn, the numerous legal challenges / judicial reviews that are being mounted and that the legal firms are circling looking to take on cases where children have been transitioned before they were of an age to fully consent / surgery gone wrong etc.
I wouldn't want to be a Head (or a governor) of a school who had followed the trans "guidelines" and transitioned a child in secret from their parents thus breaching safeguarding guidelines. Impossible to defend in light of the law and presumably opening a school up to paying significant damages.

There is a thread for gender critical school governers somewhere.

Just commenting on things people have said - I don't think it's true that under 18s can't have the p/c of gender reassignment. Sorry double negative. I'm sure they can have that p/c, and someone has that p/c as soon as they intend to transition (which doesn't have to be medical). The q is whether to exclude such a person from opposite sex spaces constitutes discrim on the grounds of gender reassignment. The EA plainly provides orgs with the ability to lawfully exclude someone with that p/c from opp sex spaces. It seems ridiculous that a communal changing room isn't one of the types of places the legislators had in mind.

I think the legislation about single sex loos in schools for children above 8 is not the EA but much earlier legislation about school buildings.

Ann Sinnott's application for judicial review will (if it's given permission) challenge these sorts of interpretations which were initially in the ehrc guidence and are replicated everywhere by advice orgs like this. There is hardly any case law on this. Some lawyers think that in situations like this if a school chooses not to exclude a male person from girls changing room when it could have done so lawfully it would be engaging in indirect sex discrim against female students.

Are safe schools alliance also bringing court cases on this issue? I think ultimately it will have to be court rulings which get orgs like this to withdraw this kind of advice.