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.'

So if it's possible, and easily implemented, you do support it as a reasonable adjustment?

One would think that 'gender incongruence' was the only bloody thing children were dealing with that required care and consideration, when in truth children have dozens of issues that may be upsetting or difficult or need consideration. As do teachers, for that matter.

Are you an adult or a child who attends this school?
If you read my posts I've said it shouldn't be in national guidance as it's not possible in numerous schools and given very clear safeguarding, practical and ethical explanations as to why.

Yet I have parents asking for help because they are so worried about their child going to school with allergies/epilepsy/diabetes/heart conditions/brain injuries and there’s no safe toilets as they are all fully enclosed designs.

I have had desperate parents asking what the law and regulations are on this.

Thanks KTS for reminding us of the critical issues that some children face that need reasonable adjustments - especially for illness and physical disabilities.

There are particular issues for schools in relation to mentally vulenrable children. The available national data about this group of children shows the majority have numerous other mental health co morbidities - anxiety, eating disorders, suicidal ideation etc.

Schools must ensure that the reasonable adjustment isn't counter productive and makes matters worse. A child with suicidal ideation is a child who a school will need eyes on at all times. You can't have that child wandering the school, isolated from peers during the day for safety reasons.

That's why the technical guidance is so flawed. It may be reasonable / appropriate for a girl confused about her sex and with an eating disorder to change separately from the other girls. Or it may be a catastrophic decision that only embeds her sense of difference and encourages alienation from her body and her peers. To make that judgment you need the advice of those trained in child psychology, wellbeing and knowledge of how to keep suicidal children safe during the school day.

Sometimes well intentioned plans unintentionally make matters worse by reinforcing an unhelpful behaviour rather than helping children grow and develop through the phase iyswim.

Link for anyone interested in how reasonable adjustmenst work in schools:

educationhub.blog.gov.uk/2023/04/what-are-reasonable-adjustments-and-how-do-they-help-disabled-pupils-at-school/

Weirdly, that's exactly the link I was about to post @MrsOvertonsWindow !
Specifically, it was this section that jumped out at me:

Can parents ask for adjustments to be made for children who aren’t disabled?
Schools aren’t legally obliged to provide reasonable adjustments for children who aren’t disabled, but many will work to provide similar support where needed.
For example, a pupil who experiences anxiety may find it helpful to adjust what time they arrive at school.
Working with pupils to make these adjustments can increase attendance and improve behaviour.
Schools should consider this approach in these circumstances.

I had been thinking about reasonable adjustments overall, after reading the pertinent points you raised about school layouts etc. I did some googling and that was the blog that I found.

Sometimes well intentioned plans unintentionally make matters worse by reinforcing an unhelpful behaviour rather than helping children grow and develop through the phase iyswim.

This makes a lot of sense. In the case where a child is distressed about changing in the facilities that are designated for their sex, because they identify as the opposite sex, treading this path sounds particularly difficult. The distress is no doubt real and if a safe, reasonable adjustment can be made to accommodate a third space this seems ok, as long as it is part of a bigger plan to help this child understand that their sex is real. This would mean joined up care with mental health teams to make sure that the provision of this third space does not reinforce the child's belief that their body is wrong for them. And making sure that the school isn't perpetuating this by creating an environment that promotes affirmation of opposite-sex identity as an example of respect.

Joined up support may possibly also include OT (for body grounding exercises) and SALT (for language processing on what it means to "be" male or female vs stereotypes) if the child is autistic.

Coming back to the guidance, it really is appalling that the EHRC wants to tell schools that they risk being found discrimatory if they don't provide third spaces. There is no law under which this could be true and no obligation whatsoever on schools to legally provide these. Instead, some carefully worded guidance could say something like:

"If a gender questioning child is too distressed to use the single-sex facilities that are congruent with their sex, the school may consider whether reasonable adjustments could be made, such as a single occupancy additional space. If considering this as a reasonable adjustment, schools must only do so if the child's wider safeguarding needs can be met"

The rest would need to be in KCSIE. What I'd love to see in the KCSIE guidance is far more joined up thinking about the impact of schools allowing staff to put preferred pronouns in their email signatures (e.g. this signposts the idea that children might want to identify as the opposite sex) and a clear link to autistic children's vulnerability to being ill at ease with their body changing during puberty and a vulnerability towards conflating sex-based stereotypes with what it means to "be" male or female.

KCSIE disagrees with you though. It says almost the exact same thing as the EHRC guidance.

The EHRC guidance says "A secondary school is considering how to provide appropriate changing facilities for a trans pupil who identifies as a girl. The school must provide single-sex changing facilities and showers for children who do physical education at the school. It is therefore not permissible to allow the pupil to use the girls’ changing room. 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. A suitable alternative might be to allow the pupil access to a single-user, lockable changing room, which might be a staff changing room or a mixed-sex accessible bathroom."

And I've attached an image of what KCSIE says because it wouldn't let me copy and paste for some reason.

Neither of them say that this is what should happen.

Thank you for adding that link @MrsOvertonsWindow . As you know, I collate incidents that happen in toilets, and focused on schools because of the massive design changes.. Of course there are real life repercussions to adding private mixed sex spaces to schools, which don’t just affect children with ambulant disabilities, those having a medical crisis including mental health crisis, but also to girls.
It seems schools used to be aware of this - the unisex toilet was opposite reception.

Adding MIXED SEX, PRIVATE SPACES to schools causes so many problems.

I see no reason why history won’t keep repeating itself if a school adds these toilet mixed sex, private designs. Pupils will be pushed/led in there or go willingly with another for sex. As well as safeguarding issues it’s then potentially a crime. Pupils will go in there for ‘dirty protests’ - smearing etc. And of course drug use - sharing as well. They will take up so many teaching hours to watch.

Hidden camera use is on the increase and these designs facilitate this in pupil and staff toilets. Ironically schools have put all sorts of monitoring systems in these private cubicles and rooms like heat monitors which I still don’t know the legalities of but seems like it’s breaking some law?

When schools have to buy in alarms that are specially targeted at ‘gender neutral’ designs, it’s a sign not to add any more of these designs? This is an advert from a company that started selling their alarms in the UK. It doesn’t mention the pre-loaded phrases a pupil can shout to push a text message onto staff phones. The recommended ones are ‘stop it’ and ‘help me’. Schools have then been known to turn ‘smart’ alarms off because of misuse.

School toilets have always been used for loitering, bullying, aggression, sexual activity and drugs. They used to be used for smoking, now that's more likely vaping. Shitting in the sinks, or stuffing them with toilet roll and flooding the toilets is unfortunately quite common.

Gaps in toilet doors put kids at risk of having someone take photos/videos of them through the gap. Gaps at the top put kids at risk of having stuff thrown at them while they can't move out of the way and can't see who is doing it.

Floor to ceiling doors and open sink areas have solved some problems and caused others. I wouldn't like to say which option is better or worse.

I have known your username for a long time on here @noblegiraffe and know your intentions are good. I would be delighted to send you my research so you can read for yourself what is worst. PM me.

We have talked a lot about toilets, I know!

I think you said that one of the problems was a complete lack of data collection around incidents in school toilets so it would be extremely hard to make a fair comparison between what went on in old-style toilets and new-style toilets, particularly in terms of loitering, bullying, smoking, sex, drugs etc. I mean I know all that went on in the old ones and still goes on in the new ones. The videoing under doors and throwing stuff over doors did go on but has stopped. Vandalising the sinks and flooding the toilets has decreased now they're open to the corridors.

I totally understand what you say about medical incidents in toilets and the safety aspect around not being able to see what's going on inside a cubicle - that's a real, pressing and valid concern.

But to suggest that the new-style toilets are causing problems like loitering, vandalising, vaping, drugs, bullying as if the old-style toilets didn't have those issues just isn't my experience.

The KCSIE wording is very different from the EHRC wording and definitely doesn't disagree with MrsO.

I've bolded the key words in the paragraph you quoted that demonstrate how it backs up what MrsO is saying.

117. If a gender-questioning child does not want to use the changing rooms and showers designated for their sex, schools and colleges should consider whether they can provide an alternative changing or washing facility without compromising the provision of single-sex facilities. This could be a fully enclosed room – for use by one child at a time that can be secured from the inside – or by allowing access to facilities at an alternative time. These alternative arrangements should not compromise the safety, comfort, privacy or dignity of the child or of any other children.

That's in direct contrast to the EHRC which is saying that it's likely to be unlawful indirect discrimination against the PC of gender reassignment if the school doesn't provide these facilities. The EHRC is talking legal nonsense on this point. The PC of gender reassignment has no bearing whatsoever on which facilities a child uses when the facilities are segregated by sex.

Offer is there @noblegiraffe . I have pulled together scientific articles, academic research, real life incidents, done FOI requests to retrieve information, coroner reports, police data. Edit to say there’s some sound comparison info too.

I am an ex-teacher, and I know this is economically a strain for schools. It’s a problem for schools that installed toilets in good faith not knowing the origins of these designs, and that they were put in despite known risks and without proper assessment.

No, it says that it would be unlawful discrimination to force the child to use the correct sex facilities, not to not provide an alternative space. It says a suitable alternative to forcing the use of correct sex facilities might be to allow the pupil to use a different space. Not should, not must. It is not saying schools have to do this.

KCSIE is also saying that schools should consider a suitable alternative option such as a separate room. Not should or must provide.

KCSIE presumably doesn't say here that the child can't be forced to use the correct sex facilities because KCSIE says that not all gender questioning children have the protected characteristic of gender reassignment, so there may be gender questioning children who don't want to use the correct sex facilities who don't have the protected characteristic. The EHRC says that those who do possess the characteristic can't be forced to use correct sex facilities.

I'd be interested in the sound comparison data.

As I've said, your concerns about medical emergencies are entirely valid. I'm not sure concerns about increased loitering are.

No, it says that it would be unlawful discrimination to force the child to use the correct sex facilities, not to not provide an alternative space.

Yes, you're right. I got that the wrong way round. Oops!

The EHRC is legally incoherent on this though. It can't be unlawful discrimination to expect a child to use the facilities that match their sex as there is no law that backs this up.

It says a suitable alternative to forcing the use of correct sex facilities might be to allow the pupil to use a different space. Not should, not must. It is not saying schools have to do this.

This is fine. It's the premise that comes before it that isn't i.e. the EHRC's idea that it is "likely to be unlawful indirect gender reassignment discrimination" is utter bollocks.

KCSIE is also saying that schools should consider a suitable alternative option such as a separate room. Not should or must provide.

Yep. This is fine too. Thankfully the KCSIE guidance hasn't linked it to any legally incoherent bollocks. Meaning that the school can say no, if it doesn't consider this to be possible e.g. because there is no safe way of providing this.

The EHRC says that those who do possess the characteristic can't be forced to use correct sex facilities.

Yes, this is the bit that is bollocks.

BTW, I think it's great that your school has been able to provide a separate facility on a reasonable adjustment basis for a gender questioning child in this circumstance. It sounds like it is a safe facility for the child to use, which is key. My only caveat to it being "great" is that hopefully the school has taken steps to ensure holistic support for the child is in place, so that the child understands he/she isn't actually the opposite sex. It's not the school's place to provide the specialist mental health support (and potentially deliver OT or SALT provision - this would need to be delivered by OT/SALT teams via a written confirmation of needs and provisions in an EHCP) that addresses this but it is the school's statutory responsibility under the RSE guidance to ensure the child understands that they have a biological sex and that this can never change.

Edited for clarity.

Let me put this another way.

If there’s a characteristic that makes a child vulnerable, don’t you think creating a targeted stand alone private, mixed sex toilet for them to use, which has desirable characteristics for misuse that everyone can access, may lead to safeguarding issues? I have listened to children who don’t want to use toilets for their sex. The girls feel duty-bound to use these toilets but feel unsafe using them.

I am thinking about everyone’s safety.

The EHRC is legally incoherent on this though. It can't be unlawful discrimination to expect a child to use the facilities that match their sex as there is no law that backs this up.

@BonfireLady given that the guidance is a legal interpretation of the Equality Act, they think that the Equality Act is the law that backs it up?

The Equality Act says that if you have a rule that applies to everybody but puts people who have a protected characteristic at a disadvantage then that would count as indirect discrimination. Treating people with a protected characteristic less favourably would count as direct discrimination.

Either of those could be used to say that forcing a kid with the protected characteristic of gender reassignment to use correct sex facilities would put them at a disadvantage, or refusing an alternative arrangement as a reasonable adjustment if could be implemented would be treating them less favourably.

And with the old style toilets of a room containing cubicles with gaps - children didn't feel safe using those either. And they also weren't safe.

You're right that it'll be the Equality Act that they believe is behind this. But this...

Either of those could be used to say that forcing a kid with the protected characteristic of gender reassignment to use correct sex facilities would put them at a disadvantage, or refusing an alternative arrangement as a reasonable adjustment if could be implemented would be treating them less favourably...

Could easily be countered with:

Either could be used to say that forcing a kid with the protected characteristic of gender reassignment to wear particular clothes or use particular pronouns to use correct sex facilities, or refusing to allow an alternative arrangement if it could be implemented could be treating them less favourably.

Given the PC of gender reassignment does not mean people need to be treated differently from others who are the same sex as them, I would assume that this second interpretation is the right one. IANAL but as long as a boy who identifies as a girl can wear a skirt and when using the boys' loos and changing rooms, I'd say that this meets the legal requirement to not discriminate on the basis of gender reassignment.

Edited for typo and to say that for the legal threshold to be reached, it would be on the parents or child to prove that a) an alternative could be provided (if the school has said it can't) and b) to explain why not having one means the child has suffered discrimination if they are allowed to wear whatever uniform they like when using the correct sex facilities

If you think they are interpreting the law incorrectly here then that's what the consultation is for, so I guess you can submit your feedback.

However, lawyers have been all over this for years and come to the same conclusion as the EHRC. Kemi Badenoch's trans guidance for schools is a prime example. She would have wanted the guidance to be 'no social transitioning in schools at all, ever, and kids should all use correct sex facilities' but her guidance didn't say this, presumably because lawyers told her it couldn't.

Her guidance says pretty much the same thing about considering offering an alternative provision where correct sex provision causes distress. In fact it says 'should'.

As ever this has swerved to toilets (no offence @Keeptoiletssafe ). The issue we were originally discussing was as you point out @BonfireLady :

"Given the PC of gender reassignment does not mean people need to be treated differently from others who are the same sex as them, I would assume that this second interpretation is the right one. IANAL but as long as a boy who identifies as a girl can wear a skirt and when using the boys' loos and changing rooms, I'd say that this meets the legal requirement to not discriminate on the basis of gender reassignment."

Transactivists - including those who have wedged themselves into schools - are very keen on insisting that it's transphobic to deny a child confused about their sex exactly what they want - whether it's access to the opposite sex changing rooms, dormitories etc, special spaces, exemption from safeguarding / pastoral care policies that should apply to every child.

IAalsoNAL but I remain frustrated that schools are repeatedly urged to deprioritise KCSIE in favour of dancing to transactivist tunes about the "trans child" and expectations about "reasonable adjustments" . This is a repeat of what was exposed and criticised in the GIDs debacle with Cass clearly identifying the problem of trans being prioritised over all the other mental health challenges and overshadowing the need to address all needs that this vulnerable cohort of children exhibit

Experience demonstrates that transactivists will use any possible loophole to deprioritise safeguarding children and this is a massive one. It's going to need a sustained campaign to highlight the reality that transactivist demands based on the pc of gender reassignment applying to all children (even new borns) in reality, render these children less safe and in many cases will foster, rather than address, their mental health challenges.

You can only have the PC of gender reassignment if you are proposing or actually undertaking a transition from one sex to the other. I don't think a "gender questioning child" is proposing or actually undertaking a transition from one sex to the other so the PC doesn't apply any more than it does for those who claim to be NB.

KCSIE says that it can apply, and where it is unclear whether it applies or not, the school should assume that it does apply.

The law has so far appeared pretty clear on that point. Anyone of any age can have the pc of gr.

One can argue on the wisdom and usefulness of that, but the law, as it stands, backs it up.