This is a bit long, sorry. But two things are bothering me about this quote:
At the centre of the case lies a genuine legal collision, not between law and prejudice, but between two protected frameworks: the rights of female pupils to privacy, dignity, and sex-based protections, and the rights of gender-questioning pupils to non-discrimination and inclusion.
First:
Do 'gender questioning' pupils have a specific right of inclusion? Does anyone? We all have the right to not be discriminated against regarding some very specific characteristics, one of which is:
Gender Reassignment
- Proposing, undergoing, or having undergone a process to reassign one's sex.
But that doesn't give us a specific right of 'inclusion'. The right to not be discriminated against and the right to be included are subtle but different. The Equality Act says that exclusion as an act of discrimination would only be actionable if it causes a disadvantage and is not justified as a proportionate means of meeting a legitimate aim. Excluding someone from something where it meets that aim, and is proportionate, and does not disadvantage them, would be entirely acceptable.
So in this scenario, excluding the boys from the girls changing room, and not providing them a third space to change would be a disadvantage. But giving them a third space which allows them to change with the same facilities as the other kids could only be considered a disadvantage if we genuinely think that these boys will somehow be 'outed' by using that space. But these girls will know the boys are claiming to be trans, they spend all day in classrooms with them, they're friends with them in some cases. In many cases they've grown up with them and knew them as Pete before they changed their name at the end of last term. It's totally impossible to think they would not be outed as trans already.
So my point is we really need to be careful about the language we use. I don't believe there is an automatic right to inclusion. There's a right not to be excluded in certain circumstances, that's not the same, and bandying about comments in the press about rights, without recognising the nuance of those rights is how trans people wound up thinking they have rights they really actually don't have in the first place.
Second:
Do 'gender-questioning' pupils actually fit under the protected characteristic of 'proposing/undergoing/having undergone a process to reassign one's sex?' The descriptor of gender questioning implies that a decision has not yet been made for one. Plus I think it's pretty well established now that children are unlikely to understand what they are consenting to when going through the medicalised gender reassignment process, hence the suspension of puberty blocker prescriptions to children, pushback against the puberty blockers trial, shut down of the Tavistock clinic work etc etc. So could they realistically consent to what is required to fit under that protected characteristic? It's obviously vague and wooly to encompass a broad range of scenarios, but I think whether it applies to children really needs testing.