When statutory guidance apparently isn't statutory

[BonfireLady]

This is a sex and gender related post specific to statutory school safeguarding and the 2024 update to national guidance.

Background

In September 2024, the DfE's new statutory schools' safeguarding guidance came into effect. Importantly, it explains the difference between LGB and gender questioning (this term was used instead of "T") children. Its updated paragraphs (205-209) signpost towards both the Cass Report and the draft Gender Questioning Children guidance. It was published in May 2024, with the draft GQC guidance expected to be finalised in July... and then came the election. The GQC guidance didn't get finalised. Obviously the other document that it references (the Cass Report) is already finalised.

The detail

Paragraphs 205-209 are prefaced by the following words:

N.B. This section remains under review, pending the outcome of the gender questioning children guidance consultation, and final gender questioning guidance documents being published.

As far as I can tell from the government website, the fact that these paragraphs "remain under review" doesn't stop them being statutory. This page about statutory guidance states:

Statutory guidance sets out what schools and local authorities must do to comply with the law. You should follow the guidance unless you have a very good reason not to.

There is some guidance that you must follow without exception. In these cases we make this clear in the guidance document itself.

These publications reflect the current legal position (unless otherwise indicated), but may not reflect the current government’s policies.

It also makes it clear that "must" refers to legal requirements and "should" refers to best practice.

Reason for my post

I'm keen to hear views from teachers, people with experience working with children, people with legal knowledge and other brilliant minds on this board WRT:

1. a school saying that it has consulted its lawyers and has received advice to say that it doesn't need to follow these paragraphs because they are "draft". IANAL but that doesn't sound right to me from a legal perspective. Surely these paragraphs are current but potentially subject to future change i.e. they should be followed the same way as all other current guidance in the document.
2. When asked their position on the actual content within the paragraphs beyond a nebulous "we follow a watchful waiting approach"**, responding with "for a complaint that paragraphs 205-209 of KCSIE are still in draft form, you are advised to complain directly to the Department for Education." Obviously that's not the answer to the question that was asked! However, it does make me wonder if the DoE should be asked to remind schools that all published guidance is current. You'd think that'd be obvious but maybe it's not??

To my understanding, paras 205-209 in the KCSIE guidance represent current best practice and schools would need to have a good reason not to follow them. To me, "our lawyers told us we don't need to" (paraphrased) sounds as ridiculous and concerning as the act of going to the lawyers on this in and of itself. But are there any good reasons why schools might not follow this guidance?

** There are various interpretations of watchful waiting. For example, some people believe that following a one-step-at-a-time "let's change your pronouns and see how you feel" is watchful waiting.

New pronouns

So why do the school say they have they said a lawyer has said "it's draft we don't need to follow it" @NeverDropYourMooncup ?

Or have I misunderstood

Is that like "new balls" in a tennis match ?

Because there's a tendency in some boards to bullishly refuse to hear what they've been told if they don't want to hear it. Some Chairs cannot abide feeling like somebody's daring to tell them what to do.

That lawyer could be a mate down the golf club, the Chair's spouse, even the Chair themselves, for example.

BOMS - Board of Members. Another term for the governing body, applying to some academies. A flippant description would be 'bunch of posh blokes and the occasional token that put great store on being seen to be very busy and important in the community, especially if it might result in an MBE nomination one day'.

@BonfireLady In my experience (slightly out of date) if this guidance was draft it would be clearly marked with a watermark or the word Draft on the front page.

Additionally, the introduction would set out if it was a draft and how it should be used. It doesn’t it’s clear this is the statutory guidance.

I haven’t read the whole document but as you say the Intro to the section “Children who are lesbian, gay, bisexual, or gender questioning” is clear it’s under review but nothing suggests it has been superseded or that it is not currently statutory.

At this stage submit an FOI request to DfE using this form. https://form.education.gov.uk/service/Contact_the_Department_for_Education

Reference the guidance including a link. Ask for a copy of any additional guidance or correspondence to schools/educational establishments that has been issued that updates this guidance including making any part of the guidance no longer statutory.

Ideally their response will be it’s all statutory and you can share that with the school. Along with an FOI to the head of how much did the (crap) legal advice cost and did it take money from the education of the children?

The process I would follow is:

• polite request to head teacher and safeguarding lead
• if rebuffed polite request to DfE
• Depending on response from DFE either write to head or FOI to DfE
• email to head teacher and safeguarding lead and governors.
• if rebuffed
• email to my MP, LEA (including safeguarding lead), DfE perm Sec copied to school head, safeguarding lead and governors.

There are steps after that but not ones I want to put on a public forum.

Not when writing to DfE try to keep it direct and focused. In this case it’s easy is it statutory or not.

HTH

This is the relevant page @Harassedevictee

I mean, it does say "there are unknowns about the impact of social transition" - draft or not that should give cause for concern

Also 207 emphasises that families should seek help.

Not staff socially transitioning the children and not telling parents (as Steve experienced as described on this thread.)

This thread:

Safe School Alliance re DoE meeting re draft guidance for schools www.mumsnet.com/Talk/womens_rights/5233221-safe-school-alliance-re-doe-meeting-re-draft-guidance-for-schools

And the introduction- schools must regard it

https://assets.publishing.service.gov.uk/media/66d7301b9084b18b95709f75/Keepingchildrennsafeinneducation_2024.pdf

@WarriorN thanks, I have the guidance, I just did a quick high level check to see if there was any typical wording to suggest it was a draft.

This is really helpful. Thank you.

Re this bit....

Depending on response from DFE either write to head or FOI to DfE

Just to clarify, do you mean a) if the DfE say it's statutory, write and tell the Head about this and b) if they don't explicitly say this, do an FOI to the DfE?

I think so from the context above but am just checking.

Sorry that was slightly confusing.

I wasn’t 100% sure how far you had got and how urgent.

If you have time then write to the DfE, but it could take time for a response.

If you need it PDQ then go for FOI to DfE because FOI has timelines they have to adhere to.

I had another thought you could do this via the What do they Know website. https://www.whatdotheyknow.com

You could also search that website to see if anyone else has already done some of the ground work for you

Yep. Another key point that makes the lawyers' advice sound incorrect.
At the absolute minimum, those paragraphs must be read as best practice i.e. the guidance in those paragraphs should be followed unless there is good reason not to. Everything points back to this.
However, info from the DfE which makes that extra clear would be useful.

@BonfireLady
** There are various interpretations of watchful waiting. For example, some people believe that following a one-step-at-a-time "let's change your pronouns and see how you feel" is watchful waiting.

I am sure the concept of Watchful waiting pre-dates Cass. As you know Cass is clear affirmation is not a neutral act.

In my view using non-sexed based pronouns they/them might be appropriate if a child is very distressed by being called their correct sex based pronouns.

Using incorrect sex based pronouns is not appropriate and is not watchful waiting nor does it follow Cass because it is affirming.

Also 207 emphasises that families should seek help.

Yes. But unfortunately one of the biggest challenges is that this help consistently defaults to "let's take things one step at a time and see if that helps" i.e. a social transition.

I hadn't seen the NHS docs you linked earlier before and they are great (they also demonstrate how good the Interim Cass Report was, even though not many people knew it was there) but they also highlight the lack of clear guidelines on what "neutral" support really looks like. The bias towards the affirmation model is incredibly strong.

Not staff socially transitioning the children and not telling parents (as Steve experienced as described on this thread.)

Indeed. It sounds like Steve's forthcoming case will be an interesting one to watch. I assume it'll be some time before it's heard but it's good to know it's coming.
But even if they do tell parents, they aren't following sensible safeguarding practices if they are then gently and "cautiously" guiding parents along an affirmation pathway. Much of the external help that schools will seek for children and their families will likely ratify a social transition as step 1 with the potential to seek referral to gender identity services if the child's distress persists. I've spoken to several professionals who see this as a neutral, responsible approach - where I've got a positive dialogue going on, I'm unpicking this.

Yes you're right - it's an absolute muddle. The gender questioning guidelines are desperately needed and I'd say also that part of kcsie too, to clarify a few key safeguarding points. Such as, big withholding info from families, social transition is not a neutral act etc

In my view using non-sexed based pronouns they/them might be appropriate if a child is very distressed by being called their correct sex based pronouns.

I can see why many people regard this as neutral. For me, this is a social transition because it's helping a child to take a step away from the status quo. It's implicitly telling that child that biological sex doesn't apply to them and/or that gender identity is more important than biological sex.

My own approach to avoiding distress is to completely avoid any pronouns. I'm also referring to my own daughter feeling upset during conversations we have about children and grown ups who identify as trans - my daughter isn't actively gender questioning now but she knows children IRL who use opposite sex pronouns. Initially that took a concerted effort, simply repeating the child/adult's name but I've got a bit better at rearranging the sentence so I don't need to do this so much now.

(And thank you for clarifying above re FOI versus writing to the DfE)

@BonfireLady I respect that and avoiding pronouns works.

I had a look at existing FOIs. Whilst this doesn't cover things at a national level, it adds to the logic that these paragraphs are both statutory and best practice:

https://www.whatdotheyknow.com/request/confirmation_that_transgender_gu#incoming-2797684

Bolton has removed its own policy covering this and has deferred to the national statutory guidance. Their take on the status of paragraphs 205-209 has all the hallmarks of cautious, good legal advice: even though it's draft, follow the GQC and refer to Cass in relation to KCSIE because it's the most current information on how to support children:

KCSIE 2024—The ‘Children who are lesbian, gay, bisexual, or gender
questioning’ section is currently under review pending the outcome of the
gender questioning children guidance consultation (DfE, 2023b)
To ensure you are following the most up to date evidence and information
in this area please refer to the DFE draft guidance for the most up-to
date information. [2]Gender Questioning Children - non-statutory guidance
(education.gov.uk) and [3]Final Report – Cass Review

Many (most?) schools will be part of a Local Safeguarding Partnership. My daughter's is. In fact they've told me that the reason they have their [self-ID, muddling sex and gender identity throughout] safeguarding policy [which positions any parent with concerns about a child who is "exploring their identity" as a potential domestic abuser under honour-based abuse] is because they are following its model policy. Obviously those are my words in square brackets, not theirs!

The model policy has a disclaimer that schools are responsible for amending any policy they base off it to accommodate further government updates. Using the logic which PPs have outlined above, the model policy (which ignores these paragraphs in KCSIE) implicitly recognises that everything in KCSIE is current statutory guidance and that the school is responsible for accommodating any changes that are issued during the academic year. As themostspecial says, the whole KCSIE document is updated every year anyway - so what else could it mean?

The school is pointed me towards the DfE for its "draft" and also towards the safeguarding partnership for its policy. The latter gives an indication of how the wider system links in: the safeguarding partnership includes every public body involved in safeguarding children. If everyone in that partnership is working towards a model which suggests parents with legitimate concerns about situations that could lead a child to transition are potential domestic abusers, it doesn't take much imagination to think how easy it is for an influencial "activist" within that framework to articulate a holistic picture where a parent is a risk to their child.

(Presumably they hope I won't remember where the accountability for their own policy and how they use it sits)

Your analysis is, as ever, thorough @BonfireLady.

I would send them the key points you've outlined below and ask for their response.

because they are following its model policy.

This is a big problem in schools and why Ofsted should prioritise safeguarding above all else. (Or a separate body which is starting to be my preference) Whether a school is using local authority safeguarding provision or a company, the senior leaders should also be making sure what they've been given is appropriate.

I wonder if you could contact Sex Matters and see if they could source an alternate legal opinion? Unfortunately even the really amazing lawyers on sex/gender seem to be experts in the EA2010 and human rights law rather than safeguarding.

What we really need is a fantastic lawyer with expertise in safeguarding to explain why if schools fail to follow KCSIE they must have evidenced and exceptional reasons for doing so, not just because the teachers have a particular political point of view (they're meant to be politically neutral in their jobs so they're breaching this requirement too).

My understanding from the safeguarding training I've done is any failure to follow KCSIE needs to be an exceptional situation where what school is doing is very clearly (in an evidenced way) in the best interests of the child and - at the very least - not harmfully impacting the other children. I would also argue all children in the school as both staff and governors are bound to consider the health and wellbeing of all children. And they have to balance all needs. In any court case the needs of all children in my experience are considered as is the primary function of the school. Which obviously is not to be a genderist indoctrination camp.

So for example, it may be beneficial for a child with particular needs but without an EHCP to have a 1 to 1 however, the impact on the rest of the school and children needs to be considered. And a court would consider that. PM me if you'd like to discuss in more detail...

(Sorry for multiple posts just catching up)

The thing about this is - if illegal guidance frames things such that they say any parents that don't immediately transition their children are abusive, in a school context any concerns about this require action.

Staff can't just transition children in secret and force compelled sex deception pronouns on all the other children (which according to KCSIE is emotionally abusing them) in the cause of 'oh these parents are abusive' without actually a) evidencing this and b) taking steps to remove the child from the parents or at the very least involve SS. Which just isn't going to happen as soon as SS look into it. Because Cass etc.

In any guidance saying it's fine to socially transition a child because their parents are abusive for not affirming, it can be challenged on the basis that if they genuinely think this (they don't, they just are trying to actively remove parental safeguarding from children IMO ) then they need to report to social services.

It's a shame the mandatory reporting for safeguarding failures hasn't come in yet (although I haven't quite worked out whether I think this is going to help or not overall) because you can't then say 'oh all these actions we're taking in school, keeping secrets from parents are fine' and then not report.

The reason this has got to this point, however, is that unfortunately there are teachers who seem completely fine with threatening very good parents with social services simply as a way to get them to back down because of the stress of it all on them and their children. They know that parents who genuinely do put their children first (and not use them as a political football as activist teachers do) will consider the impact on their child and back down. Because all this is stressful for parents and child, but not for teachers high on their zealotry.

There's a real imbalance between some schools and parents precisely because parents genuinely want the best for their child.

Anecdote, totally unrelated to gender to illustrate. I know someone whose child has a medical condition. Often kept off school, in hospital. Huge argument about attendance. School often kept child in school when unwell in a side room, so not properly supervised and not learning, which parent (IMO rightly) believed was a serious risk. Parent was threatened with social services because of low attendance and refusal to send child in when ill. Despite consultant phoning up and complaining to school. Given the nature of the medical condition the stress of all this put added risk on child so parent just homeschools now. Absolutely they could have taken school to court and won on several grounds, including safeguarding failures. But the school knew they wouldn't, because they genuinely put their child's health and wellbeing first.

I said to parent 'SS would come to your house and spend max 20 mins and turn around and tell the school WTAF are they going on about' and parent said 'yes, I know, but even going through that process is a risk to my child because it's really stressful'. And there you are.

This is what activist teachers rely on. And why they get away with deliberate safeguarding failures.

TLDR: Court cases are stressful for robust and resilient adults, activist teachers know most parents won't put children with mental distress through that.

They would though, to further the cause.

What a good thread - so much well informed advice.
This is the critical issue about why parents haven't dragged transactivist teachers in front of the courts for transitioning their children in secret. Becuase it would mean their child being centred in court and it's just not in their interests - especially given the extent of mental health issues that so many of these children are navigating.

Agree with the suggestion about contacting Sex Matters or maybe Transgender Trend to see if they'd be able to commission some legal advice for schools about all this.