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.

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.

This sounds very plausible WarriorN. I should imagine there are some schools with particularly influential people in well placed positions as you say (safeguarding leads too) who are actively contributing in the union discussions which are framing the KCSIE paragraphs, the draft GQC and Cass Report as irrelevant/illegal/bigoted. Equally, it stands to reason that those in well-placed positions like DSLs a) may not be acting on reasonable concerns that are raised by parents or staff members and/or b) are potentially actively positioning a parent as a risk to their child (e.g. referring to Social Services).

The Werewolf game that Graham Linehan talks about on Triggernometry and the TV show The Traitors highlight how much impact a very small number of people can have at scale.

I went down a bit of a rabbit hole last night on the government impartiality link you provided MrsO. There are several interesting links off it (I haven't read 406 and 407 in detail yet but I will). This applies to all staff and governors of academies and to the governors of maintained schools:

https://www.gov.uk/government/publications/barring-unsuitable-individuals-from-managing-independent-schools

I appreciate that teachers and school leadership are entitled to be in unions and that their membership and actions within the union will be subject to confidentiality. But a teacher in a managerial position (in an independent school or an academy), who has been sharing any union content which includes advice contravening statutory guidance, could be of interest to the Secretary of State from a "relevant conduct" perspective. Particularly so if they have been involved in referring any parents who have raised concerns about gender identity in relation to their child to Social Services. Obviously I don't know the ins and outs of the specific situation but this thread talks about the behaviour of senior staff members and seems relevant:

https://www.mumsnet.com/talk/womens_rights/5066499-telegraph-scottish-school-transitions-child-behind-parent-back

All that said, I agree with this...

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.

... Yet, it doesn't help where a child has already been impacted by this or is at risk of harm and the school isn't addressing this adequately. If schools aren't taking accountability to manage the risk that is articulated in the KCSIE guidance and the additional documents that it references, they run the risk of future legal challenge. Ironically, I spent over a year or so supporting the school with this key point in mind from their perspective (as well as my own interest in safeguarding my daughter).

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.

True. But I wonder if it may become complex. If parents have been reported to Social Services (and it seems clear that lots have been), it could become very costly and long-winded following up on each case to review how it was determined whether the parents were or weren't a risk to their child. Schools have the power of the bouncers on the nightclub doors on this, in that they can decide how to position the referral when they deem a child to be at risk. Hopefully in most cases SS will have robust records that show how the parents aren't a risk though, so it still could be feasible. Perhaps it needs some individual parents to get the ball rolling first and this is something that could follow.

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

It has indeed. Hopefully it's progressing and that's why nothing is currently in the press about it.

Even collating information about how many parents have been reported to SS on their refusal to affirm blindly alone would be eye opening data. I would imagine it's a lot. Unfortunately it seems to be a stick some teachers who want to bully parents into compliance and / or deliberately remove the protective influence of the family from a child use. It's just really shocking and quite often very very transparently not in the child's best interest.

"It's just really shocking and quite often very very transparently not in the child's best interest".

That's the awful aspect of this. That none of this is in the child's best interest. Schools have been completely deskilled by all this. When you work with mentally vulnerable children (eating disorders, self harm, suicidal ideation etc) there are lots of boundaries you put in place. Especially in relation to other children and social contagion, safeguarding boundaries to ensure a child threatening self harm is monitored to protect them, guidance to staff to stop the unwise launching into unhelpful commentaries about anorexia / self harm etc.

With children thinking their bodies are flawed, we allow untrained adults in schools to participate in this mass social experiment on them, with some schools not only offering their unqualified views of breast binders, puberty blockers & pronouns but also referring them to the most unsuitable, self interested adults and organisations in the country who frankly should be nowhere near impressionable children and young people.

@BonfireLady
The barring unsuitable individuals from running independent schools guidance is after a number of scandals. Some where individuals have been convicted of criminal offences (often sexual). Some where they've illegally run an unregistered school. There's often (but nor always) a criminal offence involved.

Oh my goodness I don’t know how you deal with of the realms of documents you have to read through. And what is statutory and what are guidelines. When I look at toilet designs for secondary schools I search for ‘gender’ as it takes me to the toilet section. The word ‘safe’ doesn’t. When I told DfE that the new designs were unsafe for everyone but particularly girls, the medically vulnerable and in emergencies, they said it’s the governors and schools fault if something happens because they should know their cohort and provide appropriate supervision! So follow our designs but be it on your own head if something goes wrong (and they neglect to mention what does go wrong so schools could make an informed decision).

It’s at odds with everything in KCSiE. The documents conflict.

A number of years ago I was involved in an LA building a new school. Mixed sex toilets were promoted as being a "safe" alternative but research at the time (maybe 15 years ago?) suggested there was no ethical research - just "data" provided by companies who fit toilets in schools. Yet the narrative developed that mixed sex was "safe" as it was in their commercial interests to build new toilets.

The response you got from the DfE was in keeping with the Tory government's "hands off' approach. They were elected on a platform of "bonfire of red tape". So they binned much of the school guidance developed under the Labour government. This then either had to be rewritten or it resulted in countless bad faith actors being able to step into the arena and dominate for their own commercial or political ends.

Sorry for the derail but the last government's ideology that schools must be allowed to manage everything themselves directly resulted in Stonewall, Mermaids, Gendered Intelligence and other dodgy organisations self identifying as "experts" and selling their niche fetishes and beliefs to unwary schools.

@MrsOvertonsWindow I worked in schools as a teacher and support services pre mass academisation. There was a lot of experience in local LAs. Of course it needed the LA to be a good one. The joy of being able to just make a call to someone you knew from the LA who could direct you to the person who's job it was to know the answer.

The private companies schools are using and the information from central government, schools are taking in good faith as being correct and best, current advice. It’s alarming.

@Keeptoiletssafe I'm glad you're here on this thread! I felt a pang of guilt when I talked about how good the Sex Matters model policy was (albeit that it needed the latest KCSIE... pretty fundamental!) because I also knew it wasn't adequate on toilet safety. I remember your feedback on the thread about it when they first released the model policy and also on the SSA/DfE thread.

Oh my goodness I don’t know how you deal with of the realms of documents you have to read through. And what is statutory and what are guidelines.

I'm assuming this was to MrsO? I agree!

There was a lot of experience in local LAs. Of course it needed the LA to be a good one.

Two very key points. If both the school and the LA are not on top of this from a safeguarding perspective (gender questioning children, toilet safety etc), there is more scope for vulnerable children to be let down.

The private companies schools are using and the information from central government, schools are taking in good faith as being correct and best, current advice. It’s alarming.

I should imagine it's a combination of some taking it in good faith and some actively promoting a Stonewall Law approach. Toilet safety (including the dangers associated with full height doors) and sport safety (e.g. mixed sex contact and semi-contact sports in PE) are examples of the knock-on impact of a failure to recognise the safeguarding that is linked to the protected characteristic of sex.

I spoke to my daughters about an article I'd read about the risks of full height cubicles (one you had shared) and my year 9 one said that there was a rumour that a couple in her year was using them for sex. This was an example I had given from the article, as well as risk of assault and drug deals. All sorts can go on behind a locked door. When I mentioned the risk of someone collapsing, it was reassuring to hear that these cubicles all have pull-cords. I already knew that the unisex single cubicles were additional provision. Another positive (which came from my time liaising with the school) is that it had already been confirmed that gender questioning children don't use the single-sex multi-cubicle toilets for the opposite sex. Likewise re changing rooms. Whether they did before I asked I have no idea but it's still a positive that they don't now - there were small changes that indicated a positive direction of travel overall.... but, as I said above, the pace of change was too slow amongst other issues.

@BonfireLady Sorry to hijack the thread but I must state pull chords are not safe and are not the answer. If a child is having a seizure, hypo or heart attack they are not aware enough to pull a chord (I know from personal experience). Also from the evidence I have gathered, children don’t pull an emergency if they are being assaulted. Neither do women. I expect they are in shock or feel they may be in more danger if they pull a chord. That’s why so many assaults have already taken place in disabled toilets in schools and in train carriages that have emergency buttons/chords. The final point is there is a self harm element to chords in school toilets. They really are not the answer.

No problem at all. I'm glad you're keeping it front and central. It's a good example of someone (in this case me!) inadvertently "downplaying" a risk when focusing on another point. On this occasion I was thinking purely of my conversation with my daughters when posting, and I fully accept that I did this. Both when talking to them and on the thread.

I have an interesting update to share following a PM that I have permission to paraphrase. This was the opinion of a lawyer:

The paragraphs in the KCSIE are current and should be taken as current best practice, with emphasis on should rather than must. The “under review” means that there is a current review going on and that the paragraphs are subject to change in the future. Note that the phrase is also attached to a paragraph on the Prevent/counter terrorism information in KCSIE 2024.

I've had a look at the KCSIE guidance and the screenshot below has the relevant info from page 156. Yep, same phrase "under review".

Having also now just checked... weirdly, the school hasn't ignored the Prevent section in its safeguarding policy. Perhaps I should suggest to them that they should do so, after getting a statement from their lawyers that it doesn't apply because it's draft 🙃

@BonfireLady if you find it useful for a timeline comparison for your work I have found that in 2017 the secondary school toilet documents were still using the term unisex and the gaps were 150mm from floor to door. By 2020 the toilet documents stated a 5mm gap and still no mention of gender neutral or identifying words. By 2023 the toilet term gender neutral was being used - it was called a unisex toilet at the school entrance, as per previous years, and then this: on each floor, at least one of the toilets allocated for mainstream pupil use (i.e., not including accessible toilets) shall be designed and located so that it can be identified as gender-neutral for use by all pupils whilst ensuring pupil privacy. Very confusing terminology. Can’t access if there were any versions between 2020 and 2023 to see which year the last bit was added.

I think it puts into context the speed to which language and design is changing in official documents.

If Dentons made toilet cubicles....

@BonfireLady Will not derail further - thanks for letting me x

KCSiE is going to be very interesting to implement.

Also apologies for appalling spellings in my posts - I was dictating it out, whilst cooking, I promise!

weirdly, the school hasn't ignored the Prevent section in its safeguarding policy

Weird, that.

@Keeptoiletssafe please don't worry about a derail (or spelling!). I'd call it more of a "split track at a platform" than a derail because the timeline is a shared one and is important. So much has impacted how public bodies handle/conflate sex and gender identity. Having an eye on when things changed and some milestones within that is definitely relevant. A key one in KCSIE is the 2022 guidance. This was the year that the Stonewall-influenced update was amended to include T with LGB.

Other interesting dates are covered in the "how did we get here?" section of this report:

https://policyexchange.org.uk/publication/asleep-at-the-wheel/#contents__accordion

I might have missed it but I don't think the KCSIE 2022 update is mentioned in that report, which is odd.

I tried to find the Nancy Kelley tweet that talked about how Stonewall had helped achieve the 2022 "LGBT" insertion, but I think it may have been deleted. I definitely remember reading it and I should imagine there will be an article somewhere with a screenshot of it. This article from Sex Matters goes to a dead link and I think it previously went straight to that tweet ("lobbying by Stonewall" in the first paragraph):

https://sex-matters.org/posts/schools-and-safeguarding/new-safeguarding-guidance-starts-to-close-loopholes/

Also this thread has some interesting and relevant discussion regarding schools and social transition:

https://www.mumsnet.com/talk/womens_rights/5144438-schools-referred-160-children-directly-to-gids

This is interesting. A Transgender Trend blog detailing how the Independent Inquiry into Child Sexual Abuse (IICSA) repeated the pattern seen in most if not all organisations that work with children and failed to ask the necessary questions that would expose how safeguarding children has been replaced by narrow political activism. TT details the letters they wrote to IICSA and some of the responses (or lack of them) :

www.transgendertrend.com/iicsa-safeguarding-concerns/

Extract highlighting the adult centred language used in the report and how it adultifies children and compromises safeguarding:

"The problem is that such concepts as ‘LGBTQ+ children’ appear in the final published report from IICSA, along with the repeated claim that the development of a trans identity as a response to sexual abuse experienced as a child is a ‘myth’ – a point we challenged in our letter".

"This language places a major child sexual abuse inquiry unwittingly in collusion with a lobby that directly targets children – online and through schools – with an extremist ideology that undermines child safeguarding at the most fundamental level. It gives credibility to the idea of the trans (or queer +) child and bestows an authority to the groups that ’adultify’ children in this way".

That's really concerning.

The paramountcy principle means that the welfare of the child must come before, and take priority over, any other factors.

Going back to the OP, you'd absolutely expect that therefore anything written in a statutory document which is based on evidence and case reviews, is to be taken as read irrespective of any pending review.

It is very clear how few people, even those who have law degrees, understand this,

Also this para

We felt it was pointless to write to IICSA again after the final report was published. It is important to note that the failure to ask the necessary questions to safeguard children in this area is systemic throughout children’s services and charities. It is time for adults in positions of child protection to be less credulous and more suspicious when the next movement comes along claiming to be experts on children while going against everything we know about child development and child safeguarding.

Systemic.

What a great article. Thank you for sharing.

Amongst other things, it highlights just how important it is for professionals to remember what they already know from both their experience and their training:

"It is time for adults in positions of child protection to be less credulous and more suspicious when the next movement comes along claiming to be experts on children while going against everything we know about child development and child safeguarding."

I remember talking to a family member (not a professional in this field) about the risk that my daughter was under regarding the conflation of autism-related puberty distress and gender identity. It was a good conversation but there was a really weird moment where he said "I do wonder if we'll all look back on this one day and think we're the generation that got this wrong". For context, he's the same age as me and we had also been talking about some of the rather questionable views we remembered in from a couple of generations back in the family e.g. on race and homosexuality. I had assumed he was referring to the autism conflation part of our conversation but nope, he meant that he wondered if he and I would be the out of touch ones 🤦‍♀️ However, he was just mulling it over and trying to make sense of it all. But it's relevant because he's an example of so many people who are intelligent, critical thinkers yet somehow set aside the obvious (he was in full agreement regarding the conflation risk) and default to a "I need to sense check my own potential bigotry" response. Like many people, he's clear on sports when it comes to TW in women's sports (it's a no) but feels less sure when it comes to males with DSDs in women's sports. It's clear that professionals are caught in this kind of loop this too, without necessarily recognising that they are effectively gas-lighting themselves each time they question their instinctive reaction or don't feel fully sure, so default to what feels kindest.

I opened X to look for something (I don't tend to go on it much these days, except for links from MN threads) and the first thing I saw was rather apt for this thread...

Family Education Trust is raising awareness of a film that promotes breast binding and cross-sex hormones, which is expected to be used by some schools during "LGBT History Month" in February:

https://x.com/FamEdTrust/status/1881697409635582070?t=W9qZgH-ig8kUptRkUmY-g&s=19

As if that's not concerning enough, its sponsor (the National Lottery) is doubling down on its support for gender clinics in schools, with an enthusiastic post just below the thread, which includes some.... lovely.... photos of the director and star (I assume) of the film "1 year" - see screenshots.

Here's Transgender Trend's take on the film's content:

https://x.com/Transgendertrd/status/1881756237844685234?t=8HpZKnGWBG-g80gA0cgYuw&s=19

Copy of TT tweet for anyone not on X:

Take this drug and you will be happy, make friends and win awards! No risks!
This is a promotion ad for hormones.
Would any other medical product be advertised like this to children in schools?
What does @ASA_UK have to say about this hard sell of a drug to young girls?

The "award" being referred to is from Into Film, the "education streaming service" which has platformed the film and given the award.

No idea how long the National Lottery tweet will stay up for, but here it is in case anyone wants to provide feedback on it to them:

https://x.com/TNLUK/status/1881698533427786115?t=gAOvx5otVvkwLIx25d8acw&s=19

That's grim. It's literally grooming children into seeing mutilating their bodies as a positive choice for their futures.

Brought to our children furtively and without your consent by the Department of Education

https://www.intofilm.org/our-partners

can you see what it is yet?

That's grim. It's literally grooming children into seeing mutilating their bodies as a positive choice for their futures.

Yes.

Brought to our children furtively and without your consent by the Department of Education

Surely therefore riding roughshod over para 206 of statutory safeguarding guidance and the paramountcy of the child. Here's para 206 (my bold):

However, the Cass review identified that caution is necessary for children questioning their gender as there remain many unknowns about the impact of social transition and children may well have wider vulnerabilities, including having complex mental health and psychosocial needs, and in some cases additional diagnoses of autism spectrum disorder and/or attention deficit hyperactivity disorder.

Why TF would anyone show this video to children who may be vulnerable to entering a medicalised pathway because their actual needs have been missed and overshadowed by a conflation with gender identity? That's rhetorical. I'm screaming into the void here in frustration.

Luckily, a bit of dark humour is helping me to keep my brain on track, process this and think about it in relation to my own child's risk...

can you see what it is yet?

... I nearly spat my tea out all over my digeridoo when I read that 🙃