EHRC consultation - schools technical guidance

[ArabellaScott]

https://www.equalityhumanrights.com/guidance/technical-guidance-schools-consultation

'This technical guidance explains schools’ legal obligations not to discriminate against, harass or victimise pupils, as set out in chapter 1 of Part 6 of the Equality Act 2010 (the Act).

The guidance is different in England, Scotland and Wales.

We are running a consultation on this guidance. You can access the consultations for each nation from this page'

'Technical guidance for schools consultation 2026

This technical guidance explains schools’ legal obligations not to discriminate against, harass or victimise pupils, as set out in chapter 1 of Part 6 of the Equality Act 2010 (the Act).
This guidance is not a statutory code issued under section 14 of the Equality Act 2006, but it may be used as evidence in legal proceedings.
We have updated the guidance to:

• include updates and developments in the law relating to types of discrimination and protected characteristic groups
• explain how the Act applies in different education settings and institutions like academies, special schools and school-based clubs
• clarify the interaction between the Act and other related laws
• explain how the Act applies in specific circumstances, for example where restraint, isolation and seclusion is used

We have developed guidance for each nation to reflect the differences in law across England, Scotland and Wales.

We are running this consultation to gather feedback on how clearly the guidance explains schools’ obligations under the equality act and whether we have accurately reflected the law.

You can access the guidance, consultation surveys and instructions on how to take part by selecting the links on this page.'

No, the solution is quite obviously third spaces for children with gender dysphoria who are significantly distressed at the idea of using the ‘correct’ facilities

Yes, I mean a GRC.

They can't 'reassign' their gender until they are 18.

But they are protected by 'intending to pursue' a 'gender change'.

No other PC has this weird future conditional extension.

I mean, look at this bullshit:

https://www.no5.com/2023/11/how-does-s-7-equality-act-protect-trans-people/

'As the Explanatory Notes to the Equality Act make clear, if an individual decides to spend the rest of their life as a gender different from their natal sex and then starts to live as that gender, then that individual has the PC of gender reassignment irrespective of whether they have received any medical treatment. The concept of “a process (or part of a process) for the purpose of reassigning the person’s sex” can mean many things and this is intentionally so.'

'In Taylor v Jaguar Land Rover Ltd [2020], the ET held that s.7 EqA encompassed a “non-binary” or “gender-fluid” identity. The claimant began to identify as non-binary and wore women’s clothing to work on some days as part of a process of transition, after having worked at Jaguar Land Rover for over 20 years as an engineer. The Tribunal concluded that s.7 EqA envisaged a spectrum of gender between male and female:
“We thought it was very clear that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum. That would be so, whether they described themselves as “non-binary” i.e. not at point A or point Z, “gender fluid” i.e. at different places between point A and point Z at different times, or “transitioning” i.e. moving from point A, but not necessarily ending at point Z, where A and Z are biological sex.” [178] (emphasis added)
On this analysis, an individual has the PC of gender reassignment if they move from one point to another on the male-female spectrum. The final destination does not have to be male or female. '

My bolding.

It's meaningless. Any person can say, oh, I'm thinking about doing this thing, that isn't defined, at some point in the future, and are therefore protected by the pc of 'gender reassignment'.

But intending to pursue a gender change and intending to get a gender recognition certificate aren't the same thing.

Many trans people don't have a GRC but have a passport, driving licence etc in their trans identity so you can't really say that the haven't changed their gender just because they don't intend to get a GRC.

And this bullshit is supposed to apply to a toddler, an 8 year old or a teenager as well as the adult agp man. All schools, nurseries, primary, special and secondary schools, are expected to suspend their critical faculties and safeguarding requirements and silently watch while adults transition children too young to speak in some cases, let alone to consent. As well as ignoring the impact that these lies have on young peers.

Of course it's a nonsense but it's only become apparent as we watch the EHRC producing dangerous to children "guidance" that undoes some of the recent improvements.

Agree with the other posters. I’d add that this seems to muddle having a protected characteristic with experiencing severe distress at using correct sex facilities. That isn't the same, and not all do even adults.

It also seems to be adding a huge burden on schools to provide a third changing space, i.e. for supervision.

I.e. you've got two changing facilities for PE, boys and girls and usually one staff member in each. How does it work with a child who now they legally expect to be in a third one?

If it's very distressing then arguably alternative arrangements need to be considered. However that isn't necessarily a third changing space.

I.e. at secondary school they might be expected to change before the lesson in the break in a gender neutral loo for example.

That would be easier as then that's part of the same loo arrangements rather than needing to create and keep an eye on a third changing space.

Yes. Of course this also throws up curriculum entitlement and the implications of certain children missing out on curriculum time due to needing to change in a different place that needs to be supervised by an adult x2 in a lesson. If that child is then always late for their following lesson that also has various implications. There are so many variables when you try to set up different practices from the norm in a big school which is why lawyers with limited understanding of legal issues re schools shouldn't be writing this stuff.
Sadly they are and it's dumped on schools to try to make it work.

Schools can be very creative when trying to make reasonable adjustments but these are often (not always) funded / resourced in some way.
This isn't.

A 1,000 plus intake school with one child confused about their sex might manage it easily. A school with issues of social contagion and as many as 10 or more children might logistically struggle.

I can't help but feel that ECRC has wandered into this space without doing all their homework.

I’d add that this seems to muddle having a protected characteristic with experiencing severe distress at using correct sex facilities. That isn't the same

No, but if the distress caused by using the correct sex facilities is due to something that is a protected characteristic, then schools would have to be extremely careful in how they deal with it.

'intending to pursue a gender change' is completely specious, and utterly meaningless.

Indeed, but it is the law.

Can a school legally have uniforms segregated by biological sex? So they could eg. ban all biological boys from wearing skirts like many did with girls wearing trousers years ago (doesn't happen nowadays but times have changed). In Scotland I think "gender neutral" uniform are legislated.

The recent schools banning skirts did so for both sexes so technically "equal".

What disappointing guidance. I found it very strange that they said they wanted public conversation on "whether we have accurately reflected the law" and are specifically asking for lawyers to participate. I'm hoping this is some kind of hostage-style secret message to say "HELP! We've been forced to misrepresent the law and we need someone to notice!"

IANAL but this.....

A secondary school is considering how to provide appropriate changing facilities for a trans pupil who identifies as a girl. The school decides that the pupil must use the boys’ changing room. This is unlikely to be justified and so is likely to be unlawful indirect gender reassignment discrimination.

... sounds like utter bollocks. In this example the child is male. Expecting the child to use the male changing room is treating the child equally amongst all males. What the child is wearing or whether the child identifies as a girl is irrelevant. I imagine it would be (direct) gender reassignment discrimination if the school told the child it was only possible to enter the changing rooms if wearing trousers (rather than a skirt) or if declaring oneself to identify as a boy. But there is no indirect discrimination if facilities are separated by sex whilst also being inclusive i.e. you are welcome whatever you wear and regardless of any self-described gender identity.

Where a child is genuinely distressed about using the facilities that align with their sex, I agree with NotTodayTy that third spaces could be a solution and with noblegiraffe that this could be managed as a reasonable adjustment. But the key to this being viable as an alternative is that safeguarding is prioritised. For example if there is a unisex toilet behind reception, meaning that there is always an adult outside it, great - that's reasonable.

It would not be reasonable (in the context of a reasonable adjustment) to put a child at risk e.g. entering a facility which may be a less safe space. In this circumstance I would expect the school to inform the child that no reasonable adjustment could be offered. No school should be told they are under any legal obligation to always offer an alternative - what law forces them to do that?

And as for telling schools they might want to get LGBT charities in to help them navigate situations.... WTAF? Is this Stonewall coming back like a Japanese knotweed tendril? I thought we'd got rid of all the nonsense where "expert" charities can deliver their own special interpretation of the law to schools.

Edited for typo

Is this Stonewall coming back like a Japanese knotweed tendril? I thought we'd got rid of all the nonsense where "expert" charities can deliver their own special interpretation of the law to schools.

On the contrary, it appears to be full steam ahead for Stonewall heading into schools, under the guise of Diversity Roles Models, which they have just taken over.

What Stonewall do next needs to be monitored very closely. One of their main projects is the Draft Conversion Practices Bill. But, another main focus seems to be schools, so they will be at it again. And they now have a trans-identified male as their new interim Chair of Trustees. I don't trust any of them as far as I could throw them.

This new EHRC guidance for schools seems spectacularly at odds with the new KCSIE statutory guidance. I understand that the EHRC probably feel that they need to replace the outdated 2023 guidance, but couldn't they just not replace it, instead of issuing guidance that makes no sense?

Sorry, too late to edit:

I meant to add, couldn't they just withdraw the 2023 guidance and not replace it, instead of issuing guidance that makes no sense?

On the contrary, it appears to be full steam ahead for Stonewall heading into schools, under the guise of Diversity Roles Models, which they have just taken over.

Oh FFS! 🤦‍♀️🤦‍♀️🤦‍♀️

I stand by my original observation that it reads like a cry for help from the EHRC. Like a coded message to Michael Foran et al.

What Stonewall do next needs to be monitored very closely.

Indeed.

Your responses seem to indicate that you think a girl who thinks she is a boy can use a mixed sex changing room as a boy who thinks he is a girl, in this strange 'third space' option.

If there is no issue with mixed sex spaces for changing, why segregate boys and girls in the first place?

If they need segregating by sex, then segregating by sex is the thing the schools need to do. Hurt feelings and upset should not trump actual safeguarding.

I found it very strange that they said they wanted public conversation on "whether we have accurately reflected the law" and are specifically asking for lawyers to participate

Yes, but I suppose this reflects the fact that the law is heavily contested even among lawyers. Hardly inspires faith, does it?

I wonder if its clearing ground for the EA to be redrafted. At some point I expect this will be done by somebody. Have Reform pledged to scrap it? We know the small number of activists in Labour were agitating for it to be changed, to include 'transwomen are women'.

As it stands the law seems to be creating impossible situations.

Does any other PC in the equality act give people legal protection from things they claim to find distressing?

Why do we accept the claim that a 14 yr old child who has used their own sex changing rooms their whole life (despite their supposedly "innate" oppposite gender identity) suddenly finds them unbearable?

Its about preventing discrimination (equality), and part of that includes reasonable adjustments (equity). So someone (with a pc) may ask for adjustments to be made and if they are reasonable and proportionate that is expected to be considered. But the problem is that there isnt agreement on 'reasonable'.

Some say its reasonable for a man distressed at changing with other men to be put in the women's changing room. Those who consider women to have equal rights to men don't.

The first amendment could be to remove children from the pc of gender reassignment? That would immediately safeguard all the children from parents and other adults unable / unwilling to safeguard them. Prioritising safeguarding would also remove the power of the dodgy groups to be all over schools trying to influence them to promote gender ideology.
It should also raise questions about anyone trying to insist that a toddler or 5 year old should have that pc applied to them.

I agree. IIRC this draft appeared back in the spring when the KCSIE consultation was underway (or recently closed). It was obviously unaligned with the draft KCSIE and in some places contradictory.

Given that the current version of KCSIE absorbed the draft govt guidelines for “gender questioning children”, it seems massively unhelpful to have another set of guidelines that uses different language “trans children” and is inconsistent with KCSIE.

Surely all this is a huge waste of public money? Just bloody talk to each other between departments/quangos and get out of the silos.

Just venting now, so scroll on past if you don’t want to read a howl of anguish/rage

It’s so disappointing to continually be faced with guidance/decisions/draft legislation that seems to have ignored developments of the last two or three years.

Every time there’s a big story like WPATH files, Cass Review (interim and full reports), closure of the Tavistock, banning PBs, draft education guidelines, FWS, KCSIE, I think “this is it, this will end the crazy”. It NEVER does. Then some BS like this comes out as if none of it ever happened. What’s wrong with people?

Rant over, have a lovely day

Rant away!
What you have highlighted is how children are the major casualties of all this. Despite that, as soon as the DfE finally start to restore children's rights and safety this technical guidance promptly undermines that. It's written using activist language and demands with zero insight into children and schools. It's completely unfit for purpose.

I know that Sex Matters and Transgender Trend are on the case. Like you, I'm exhausted with telling well paid organisations how to do their fucking job, but yet again we need to point all this out if the small steps to safeguard children that have been put in place, are to be maintained.

It's also disappointing to see such an incoherent mess published under the leadership of Mary-Ann Stephenson.