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.

Thank you. Yours too!

We're already in written dialogue and this thread is helping lots with what happens next. There are so many brilliant posters on here with a wealth of experience.

The next response due is mine but the key thing is still for me to think about when that should be. Obviously I need to prepare for my hand being forced on that (and there are so many different ways that that could happen. Aston Uni, you still here?) but all things being equal, my immediate focus is better used elsewhere just now. In the meantime, I'm still having some interesting IRL conversations that are incrementally positive.

the senior leaders should also be making sure what they've been given is appropriate.

Yep. At both my daughters' request, I took an issue that is related to this topic all the way through the complaints process. I won't say any more about the details of the complaint - I want to stay within the complaints policy terms regarding social media, even though it's now concluded and I'm posting anonymously. The outcome was not unexpected and the entire process highlighted several key issues on this part of your comment. I did manage to reference safeguarding at the hearing, given its direct relevance to the issue in hand, but equally I accepted that the scope of the meeting did not include discussing safeguarding. The reason I'm mentioning this here is that obviously I need to be careful that I'm not positioned as a vexatious complainant. I'm glad I raised the complaint and I'm disappointed in the school's response. However, as "bigger pictures" go, the biggest bigger picture is more important than the outcome of this complaint.

@themostspecialelfintheworkshop your two most recent posts are soooooooooooooooo good. I will add some thoughts to some of the points you raised and will also PM you.

Right now, I need to drop. About an hour ago I foolishly committed to joining a game of Minecraft with my children. They know I'm crap at it but apparently I'm just not trying hard enough. I guess the natural impact of teaching children about resilience and doing their best is that they then teach it right back at you 😁 I shall arm myself with a cup of coffee and head on in. It wouldn't be so bad but a) I used to be pretty good at computer games (I was unbeaten on Chucky Egg in our house when growing up, despite my dad's best efforts) so I find my ineptitude on these modern, 3D ones really frustrating b) their feedback on my skills is often pretty brutal 😂

In the meantime, thank you to everyone who has contributed so far. In the words of MrsO:

What a good thread - so much well informed advice.

By the way SSA are really good too but the reason I suggested Sex Matters in terms of obtaining a legal opinion is I think they have a lot more cash than SSA and might be able to afford it. Plus seem very well connected, possibly as a result of Maya's case, to the top lawyers in this field.

This is so true. The process is the punishment.

@BonfireLady The gov.uk website is a really useful tool.

This page is an overview of Departmental hierarchy. https://www.gov.uk/government/organisations

If you click on the drop down against DfE you will see OFSTED appears as a subordinate dept. It’s not quite as simple as that but it gives you an idea of how they are related.

If you click on DfE or OFSTED it takes you to the homepage for that dept. The pages follow a standard format scroll down quite a way and you will get to details of Ministers, Perm Sec, Board etc.

This is useful as you can decide who might be best to escalate to.

I had a look and the Minister of State (Minister for School Standards) is Catherine McKinnell MP https://www.gov.uk/government/ministers/minister-of-state--187#:~:text=Catherine%20McKinnell%20MP,-Catherine%20McKinnell%20was&text=She%20was%20elected%20as%20the,Tyne%20North%20in%20May%202010.

Just popping on again to say - I would contribute regularly to any gardening for legal opinion that genuinely looks at social transitioning in school (on all children in the school) through the lens of safeguarding legislation and with regard to the primary statutory functions of schools (including safeguarding and education). Preferably from a lawyer with expertise in this area.

Sadly I think the reason there are so many EA2010 / human rights lawyers is because the whole judiciary is captured and this is where the money is. It seems keeping children safe and happy and able to grow up without being used as props by adults seems to be very very low down on the list of priorities.

Me too. The gaslighting of children in schools to accept that their bodies are wrong, the mangling of safeguarding in order to allow an adult fetish to be pushed at children below the age of consent and the appalling behaviour of a (small I hope) number of schools in removing parental rights and socially transitioning other people's children is an abomination.
This urgently needs legal challenge and I suspect would be a priority for thousands of worried parents feeling hopeless and helpless in the face of some dangerous professional arrogance from educators.

I'm surprised no-one has taken this up. It seems this would be an area where a keen young lawyer could make a real impact. There is already a precedent that safeguarding statutory guidance / legislation takes precedence over other law (GDPR). This obviously needs to be the case because if you follow GDPR you just can't safeguard according to the law, the laws are completely in conflict, and the same IMO is true of EA 2010 / GRA as they apply (if they do) to children. I wonder which lawyers were involved in advising on this very clear guidance that GDPR cannot be a barrier to safeguarding and if they are still practicing.

A lot of the gender ideology influenced guidance being pushed on schools already - IMO - breaches KCSIE, many schools are clearly already breaking the law on single sex toilets over age 8 and also various other requirements. E.g. the requirement for governing bodies to act in the best interests of all the children in the school. Which forced wrong sex / sex deception pronouns definitely is not.

I'm honestly just shocked daily that so many schools are getting away with it. Especially since there are many schools where responsible adults have quietly just carried on safeguarding as they should and ignoring the GI illogical, ideological anti-safeguarding nonsense.

It can't be stated often enough that safeguarding children in schools legally takes precedence. It just shows the immense power those driving this ideology have that they've been able to persuade those responsible for children's safety that a niche fetish must be prioritised over children's safety and wellbeing. And yes, it's a credit to all the schools who've prioritised children and their wellbeing throughout all this and managed to keep this ideology out of their schools.

Absolutely and there are MANY schools where they continue to safeguard according to the law. The harms suffered by the children in genderist schools compared to schools with proper safeguarding really should be studied. Those children have been disadvantaged. I for one would like to see the English GCSE results compared between children who've been taught standard rules of English and those who've been taught people can make pronouns up with a shifting sands approach where in theory everyone gets to decide their own pronouns but in practice they don't (because that would make school completely unworkable), only the most elevated do. Oh and to blaspheme and get pronouns wrong is a sin. But it's very difficult to know who gets the special pronouns and who doesn't (except in news reports where usually it's the alleged violent criminal that gets the special treatment, and the victim who gets bog standard pronouns).

And yes, it's pretty appalling once you join the dots and see the forced teaming of children who don't feel at home in their own bodies with adult males with a fetish for acting out the sex role stereotypes typically associated with women (and sometimes girls, which is even dodgier and throws up pretty clear safeguarding red flags). They're not the same demographic at all.

Edited to add: I had tried to write this as a quote post. I'm referring to @themostspecialelfintheworkshop 's post from 9.36 yesterday.

Thank you again for these great points.

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.

They may be able to help, you're right. This isn't Sex Matters core space but they've done some really good work on school info. For example, their model safeguarding policy is well written:

https://sex-matters.org/posts/updates/a-model-policy-that-protects-all-childrens-wellbeing/

However, it points to the 2023 KCSIE, which may suggest that they don't have access to lawyers with this type of expertise and/or it's not a key priority area for them. They are doing an excellent job in relation to the Supreme Court case, which is presumably a top priority at the moment. TBF everything that's needed in safeguarding as well as women's rights hangs off the result of this case, so I'm definitely not complaining!

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).

Agreed, we do.

On the point of neutrality, I'd like to see a school legally challenged for breaching the Nolan Principles. The draft Gender Questioning Children guidance makes it clear that not everyone believes that we all have a gender identity. Like any other belief, secular schools and other public institutions shouldn't be promoting this belief as if it's factually true. They are legally obligated to be objective on matters of belief, where a belief is at odds with observable fact (e.g. we don't have school biology books telling us that human conception always requires sperm, except in exceptional circumstances where a woman may fall pregnant as a result of a divine intervention).

My understanding is that:

1. sex is an observable, biological, immutable reality. All DSDs are sex-specific and validate the binary categories of sex.
2. gender is a social construct, whereby every culture places its expectations and limitations on people in relation to their sex, sometimes subconsciously e.g. giving pink gifts to baby girls and blue gifts to baby boys
3. gender identity is an internalised feeling that some people have where they believe that a) they have a "gendered soul" that maps onto these expectations/limitations b) this soul sometimes aligns with a person's sexed body and sometimes doesn't and c) this soul is more important than their biological sex i.e it is the mapping of this soul to "gender" (sex-based societal) expectations/limitations that determines whether someone is male, female or neither. I'm using the word soul here to mean a sense of self that is separate from the body.

The bit that's missing is the legal expertise to pull it all together with safeguarding built in, including the recognition that:

a) schools are promoting a belief that everyone has a gender identity, therefore signposting the possibility and suggestion of social transition to children (if some children are unsure if their perceived gender identity "correctly" aligns with their sex)
b) social transition is not a neutral act and, as per the the KCSIE guidance, it has unknown outcomes. Unknown outcomes may put children at risk of harm.
c) some children who believe that they have a gender identity are at risk of being isolated from their families, where i) such children become gender questioning ii) their parents express concern about their child's vulnerability towards an affirmation pathway when other needs may have been overshadowed iii) they are told that this expression is a demonstration of a lack of respect towards them and a potential sign of honour-based abuse
d) some children who believe that they have a gender identity are at risk of being coerced by adults that they trust to i) believe that this does not match their body ii) that their body should be changed to align with it iii) that it will be harmful to them if they do not make this change.

It would be helpful to see the parallels with Prevent explored. Just as with everything that falls under Prevent, a belief that is incongruous with observable, known fact is innocuous at a basic level e.g. it's not harmful to hold a belief that a virgin (Mary) can give birth to a child (Jesus). However, some people are vulnerable towards being influenced to take actions which may lead to harm in relation to their belief.

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.

This is key. Schools have no way of evidencing that social transition is in the best interests of a gender questioning child. Nor that it is in best interests of others in the school to accommodate a child as if they were a member of the opposite sex (or as if someone has no sex, in the case of someone who identifies as non-binary).
The PC of gender reassignment doesn't obligate anyone to act as if someone is the opposite sex. It means that a) a boy who identifies as a girl should be treated no less favourably than a boy who doesn't and b) a girl who identifies as a boy should be treated no less favourably than a girl who doesn't.

In any court case the needs of all children in my experience are considered as is the primary function of the school...

PM to follow. Thank you.

I'm honestly just shocked daily that so many schools are getting away with it.

Two words: The Unions.

No probs re multiple posts. There's lots of great info in what you're saying.

that they say any parents that don't immediately transition their children are abusive, in a school context any concerns about this require action.

Indeed. The problem comes when a laudable culture of inclusivity (every child is valued) tips over into an implicit understanding within the staff that the only kind way to help a gender questioning child is to take it one step at a time e.g. let the child use new pronouns and take it gently from there. Obviously I'm not privy to conversations between the school and other parents about their children but the during my previous collaborative conversations on gender identity with the leadership team, I was told that there were very different views on how the school should manage this topic for both these children and at a general school level.

Staff can't just transition children in secret

This was a positive change that happened during the year that I was liaising with them i.e. they stopped doing this. The change happened before the draft guidance came out.

and force compelled sex deception pronouns on all the other children (which according to KCSIE is emotionally abusing them)

This is a key point. "Forcing" can be done in different ways. The most overt way is as a direct instruction to children "please use these for pronouns for [name]" but enforcement can obviously be much more subtle e.g. "[name of biological girl] would like us all to use he/him pronouns for him. He understands that you might sometimes get it wrong and that's OK. He's just asking you to do your best." Repetition and role modelling from trusted adults is very powerful. Hence the relevance of the Nolan Principles. Staff can hold a belief that everyone has a gender identity but they shouldn't promote this to children.

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.

This is where a shared/model policy within a local Children Safeguarding Partnership comes in. Yes, schools are responsible and accountable for their own safeguarding policies but the problem is bigger than just individual schools.

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.

Sadly the topic of gender identity has a whole different set of rules. However, there are clearly lots of people in Social Services (and individual schools) who are doing a good job and want to support families. Hopefully critical thinking is making its way in to system level thinking. Although the Rachel Meade v SWE tribunal is relevant, it's tangential to the key point: it doesn't matter whether someone "holds gender critical beliefs", simply doesn't believe that everyone has a gender identity or does in fact believe in it. The Nolan Principles hold Social Workers to objectivity. But yes, the process is the punishment.

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

Indeed.

Sadly I think the reason there are so many EA2010 / human rights lawyers is because the whole judiciary is captured and this is where the money is. It seems keeping children safe and happy and able to grow up without being used as props by adults seems to be very very low down on the list of priorities.

I agree. We've seen far too many large scale safeguarding failures happening repeatedly: grooming/rape gangs, abuse in children's residential care, Operation Yew Tree and so on. I guess safeguarding is complex to unpick at an institutional level. Family law is obviously an existing specialism, and presumably where it naturally sits (?), but I guess most legal training and expertise will be focused on individuals within a family breakdown (and the safeguarding linked to this) rather than institutional safeguarding failures. Presumably these individual family situations rely on public institutions to have solid safeguarding in place - so may not have an opportunity to look too deeply at where cracks might exist.

@Harassedevictee thank you for the links.

@MrsOvertonsWindow and @themostspecialelfintheworkshop your conversation has some great nuggets. Re the forced teaming, the infographic below lays this out really well IMO. Understanding these differences at a general public and public institution level is key.

@WarriorN yes.

Re the legal system, this is a very interesting point.

There is already a precedent that safeguarding statutory guidance / legislation takes precedence over other law (GDPR). This obviously needs to be the case because if you follow GDPR you just can't safeguard according to the law, the laws are completely in conflict, and the same IMO is true of EA 2010 / GRA as they apply (if they do) to children. I wonder which lawyers were involved in advising on this very clear guidance that GDPR cannot be a barrier to safeguarding and if they are still practicing.

So many good points. A couple of additional things to consider
Schools are legally required to be politically impartial - the 1996 Education Act, sections 406 & 407. That's what any legal challenge should be based on - being politically neutral isn't negotiable - it's a must.

https://www.gov.uk/government/publications/political-impartiality-in-schools/political-impartiality-in-schools

Re a legal case, I've been thinking about the challenge to the CPS when they produced those very ill advised "trans guidelines" for schools. They withdrew them promptly when faced with the public scrutiny of a judicial review. I wonder whether, rather than some poor family having to face public scrutiny at the centre of a court case, a similar tactic to the CPS could be used against a school that's adopted one of the toxic guidelines produced by queer theory groups? The CPS challenge was taken by a teenage girl (anonymous) supported by her mother who complained about the danger that the guidelines posed to her. A collaboration between Transgender Trend / Safe Schools Alliance / Sex Matters (and others) could access the best legal minds in this area to challenge this?

It's so important that schools are forced to understand the dangers of what they're doing by signing up to all this and it seems that a court case may be the only way?

Edited to add that all the above groups are doing sterling work individually - just feeling frustrated that some schools are blithely carrying on pushing this dangerous to children stuff with the children taking the long term consequences with their wrecked bodies and minds.

That makes perfect sense. My union is utterly and hopelessly captured. TRAs saw the perfect opportunity to leverage an institution based on ‘good intentions’ to advance their ideology. Worked a treat. Lots of well meaning but unthinking leadership and members. I will leave but a small part of me holds on to its original purpose of protecting workers.

Sorry, realised that was ambiguous.

My "yes" was a WarriorN re the unions.

My "Re the legal system, this is a very interesting point." was to themostspecial for the comment that I quoted from next.

This is a very interesting line of thought MrsO

Teachers who are union involved and trans activists invariably also lead strongly in an area of the school on things like LGBT clubs, awards, pushing the narrative across the school.

Schools have been ignoring statutory guidance for years with Sendcop. It is hardly surprising that they will also ignore other bits of it.

They have. But in this case schools have openly flouted it, openly conspired with dodgy external political queer theory groups and (as detailed above) attempted to remove parental rights to safeguard their children from harm.

To be fair to schools, with the DfE throwing money at queer theory lobby groups and Ofsted being a Stonewall champion openly pushing gender identity at schools, it's not surprising that schools have acted as they did.

Worth taking a look at what happened when Stonewall went a whinge too far and complained to Ofsted that inspectors weren't gaslighting talking to primary children often enough about sex change. The letters were leaked to the Telegraph, Ofsted ceased being a stonewall champion and did a shamefaced reverse ferret hoping desperately that they'd never be held to account for such an appalling safeguarding fail. It seems to have worked but presumably they're now embarrassed to speak out in case anyone points out their complicity in all this:

https://www.telegraph.co.uk/news/2022/06/18/ofsted-cites-lack-gender-identity-lessons-factor-primary-school/

https://archive.ph/L987K

True but they usually, in my experience, at least pretend to be trying to do what they're supposed to on SEND and often it's a lack of funding / staff (which are obviously related)which causes failures rather than a lack of desire to actually follow the law.

Gender ideology is very different to this. They're deliberately and openly flouting the law with the fervour of religious zealotry. They're not even trying to be balanced or neutral or acting in the child's best interests.

Edited to add: Some schools not all, the ones with TRA activists in them.

IANAL but I wonder if there could be a kind of 'class action' (which I think is a US term) where all parents affected, not just individual cases, could sign up to. Because even if a child is not 'gender questioning' thare are such wide ramifications - for girls and their single sex spaces, their safety, privacy dignity, for SEND children, and just all children's right not to be taught contested ideology as fact and compelled to use speech that doesn't make sense and is confusing (and anti-safeguarding).

Do you remember the group of parents that were going to take legal action against the Tavistock? That's gone very quiet.

@themostspecialelfintheworkshop The Darlington Nurses are a class action, because there is more than one claimant.

A class action from parents is entirely possible but you need to go through the proper steps of complaints etc. to get to that point.

Eleanor Frances’ settlement of £1116k with DCMS and DSIT including a statement committing to overhaul their HR policies will have sent shockwaves through the Civil Service. It will take time but that will trickle down to the NHS, Schools etc.

Ultimately, I think there will be an inquiry, like the infected blood scandal - How did taxpayer funded institutions like the NHS, Civil Service, Police and schools become so easily captured? The problem is that it takes decades to get there.