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.'

OK this is quick as I am going out.
Things we can agree on:
Toilets are vulnerable places (this is so much so they have a special section in the Sexual Offences Act 2003).
Pupils have sex in toilets, do drugs in toilets, vape in toilets. They vandalise toilets. All the same reasons the amount of public toilet provision has decreased.

It’s whether you agree that designs should be such that vulnerable children (I include all vulnerable children) should be in a completely private design or a semi private design within a private environment for their sex.

By making the cubicle an area that opens up onto an open space, the designs are private and you are taking away the rights of vulnerable children to have access to a safer design if they collapse or misuse happens within that space.

You have used the example of children vaping in toilets. There’s teachers stating they are traumatised from doing cpr on children in playgrounds or corridors who are having seizures due to spiked vapes. They are scared that next time it will be in a toilet and they won’t know. This was report by Bath University.

Well yes, we agree. That the protected characteristic of gender reassignment applies to children is the biggest problem here.

But if using the correct sex facilities causes distress, then I think you will have a hard time arguing that an alternative shouldn't be provided as a reasonable adjustment even if the protected characteristic isn't there.

Schools provide alternatives all the time for children who are distressed by particular things. We are generally not in the business of deliberately causing distress to children, regardless of the source.

Well doing PE caused significant distress to me, and I wasn't given an alternative, which was probably the correct thing to do. You can't pander to all distress.

Anyone of any age can have the pc of gr.

I agree but to have the PC of gender reassignment you must be proposing or in the process of transitioning from one sex to the other. I don't believe a "gender questioning child" is proposing to transition they are just gender questioning.

Maybe go and read up on reasonable adjustments and the criteria for using them? (link above).
All sorts of things cause distress to children - sometimes seemingly minor things cause immense distress as those of us who are parents or who work with children of all ages can attest to.
Sometimes making an adjustment to systems is the appropriate thing to do. And sometimes (as I've repeatedly explained upthread) it's a catastrophic thing to do.
Sometimes the right thing to do is to enable resilience and acceptance in children.
When you deal with legal matters in schools the reasonableness factors kick in - whether an adjustment is appropriate depends on cost, practicality, effectiveness and health and safety, not to mention budgets as well as personal demands from individuals.
Having to justify that your decisions to deny a service in front of tribunals / courts (which I have done) is very informative for a school. And it informs your practice - especially in the face of emotive demands from parents and students insisting on certain provisions that may well not be in their long term interests and certianly not in the interests of the school population.

Just because parents and a child want something doesn't mean it's right for the child in a school setting.

I am out now - but just wanted to point out no offence taken - just really difficult to not speak up when I know so much about safeguarding and toilet incidents. And how design ‘solutions’ once deemed discriminatory and the BBC said the DfE called ‘illegal’ are now seem be ok'ed.

I did and it said
"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."

And the use of the word 'should' is important. Not might, or could.

If allowing a pupil to get changed in alternative space because the correct sex space causes them distress, it certainly seems to meet these criteria, if it enables that pupil to participate in their PE lesson where otherwise they'd be truanting/refusing to get changed.

I mean, it's in KCSIE so I think it would be fairly easy to defend this in court.

You should consider it, that doesn't mean you have to do it if it's not practical or reasonable, same as workplace adjustments. In some cases, it isn't reasonable or workable.

Yes - "...should consider...."

You may have more experience of being challenged on these issues at a legal level than I do? But my extensive experience tells me that demands made by transactivists about children usually fail to appreciate the range of issues that these vulnerable children present with.

The trans demands repeatedly overshadow the numerous comorbidities that contribute to a child's mental health issues. They seek to marginalise and emphasise difference and vulnerability, rather than encouraging resilience, collaboration and learning in children. It's not an approach that has any place in a school and finally small steps are being made to see these children as vulnerable rather than as pawns in adult debates.

Anyway - interesting discussion but probably enough repetition of the same issues which is very tedious for others.

Sure, but if it's recommended as an approach for gender questioning children in KCSIE then suggesting that it is inherently unsafe and always inappropriate and following that advice could cause you legal problems is a bit of a non-starter.

From a parent’s perspective, it is incredibly frustrating to have schools validating and enabling trans ideology in school. For parents (like me) trying to safeguard their child and manage their distress holistic, it leads to triangulation where the parent is the bad guy and school (the other authority figure) supports the child who sees themselves as a victim.

I know the new KCSIE mandates school must take parents views into account and some parents will be all for transitioning their children so there’s not a ‘right answer’. However schools validating the ideology and enabling some children to transition is not a good thing IMO

It is unclear in KCSIE whether parents would need to be involved if a gender questioning child was being allowed to get changed in an alternative space.

I don't think it counts as social transition because it is not supporting the child to appear as the opposite sex.

KCSIE says that if a child is using alternative facilities, these changes should be recorded, reviewed regularly and communicated appropriately but it does not specify what this means.

KCSIE says that some gender questioning children will have the pc and some won't. Where there is doubt, they should be treated as if they do.

'Proposing to transition' is extremely vague and transition can just involve dressing differently so it's a bit crap really. I don't think it would apply to non-binary kids because you have to be transitioning to the opposite sex, not just away from your own.

Indeed. The grooming of schools to unconditionally accept trans ideology along with trying to embed parental alienation in school systems has been chilling to watch. It goes against fundamental safeguarding principles way back to the Children Act about working in partnership with parents and the state not intervening in family life without good reason.

It's been so extreme that the DfE has finally started to roll this back but it's slow progress. Guidance still has "qualifications" that allow those with ill intent towards families and children to persist with the "families are dangerous for children" narrative and the simplistic belief that sex change is positive for children.

I disagree. I don't think any gender questioning child can have the PC of GR. If they are committed to transition then they are no longer questioning. There are only ever going to be a tiny number of children who could qualify for the PC of GR. Cass's mythical child brought up as the opposite sex for 10 years would have the PC of GR but a child uncomfortable with their pubescent body would not.

A child uncomfortable with their pubescent body is basically every child for a bit.

If it's being done on the basis of them having the pc of gender reassignment then yes it counts as 'social transition'. It can't be both.

I don't see how a child can be considered covered by a pc based on a doubtful presumption of something that may or may not happen at some vague unspecified point in the future.

KCSIE says that some gender questioning children will have the pc and some won't. Where there is doubt, they should be treated as if they do.

That sounds really tricky ground.

If a school treats a child as if they have the pc of gr based on a 'doubtful' reading, then how will they have a leg to stand on if a parent decides to sue, because schools are not supposed to socially transition a child?

I really do not envy schools being put in these positions.

They are being asked for the impossible, to appease trans rights activists, to safeguard children, to follow law that is very unclear at best and apparently inherently contradictory in some places.

That's before we even get to the issues like vandalism, assaults, bullying, health issues, vaping, etc.

Interestingly in Scotland a year or two back we suddenly had a rash of school high heed yins firmly and repeatedly talking about how parents were a child's first teacher and reaffirming parents' rights wrt children. It seemed fairly clear to me, as a parent, that there had been an edict sent out.

It's very telling and depressing that appeasing trans rights has until very recently been the priority over safeguarding children in some schools. It's a minority but there's still a significant battle with transactivists promoting the ideology at the expense of children's wellbeing.

I hope that the feedback on this guidance will make it impossible for the government to ignore the conflict it raises with KCSIE & children's safety.
But it's not certain.

Wow. So if a child tells the school that they are gender questioning and asks for alternative changing facilities because changing in sex-segregated facilities distresses them.... your first thought is that the parents don't need to be told because this doesn't meet a threshold for social transition 🤯

If a gender questioning child asks for any support from the school, the KCSIE guidance says that parents should be involved. Here's what it says (bolding is mine):

268. Parents and carers have the leading role in the lives of their children, and this area should be no exception. Therefore, where a child who is questioning their gender asks for support from a school or college, schools and colleges should engage parents/carers as a matter of priority. It is important that the views of the child’s parents or carers should carry great weight and be properly
considered. However, in the rare circumstances where involving parents or carers would constitute a greater risk to the child than not involving them, the school or college should involve their designated safeguarding lead to determine what action is needed to safeguard the child, before the parents or carers are contacted or any decisions are taken.

A gender questioning child who is asking for alternative provision to change (because of feeling distressed about getting changed with members of their own sex) is an example of a gender questioning child asking for support.

Edited for typo

Well, unfortunately some of the transactivists are actually in government. And civil service.

The language changed in school design documents. There is no such design as a gender-neutral toilet. It’s never been a regulated design in British Standards etc. yet a few years ago the term ‘gender-neutral’ started appearing in DfE design guidance AS WELL AS the term unisex in the same documents. Unisex toilets (now technically called universal toilets) are regulated in terms of layout, space, hook placement, sink height etc.

In 2026 the design documents changed. There is no mention of the term ‘gender neutral’ toilets.