Guidance for schools on gender questioning children should “clearly explain” children cannot legally change their sex, but they can have protected characteristic of gender reassignment: EHRC

The Government’s draft guidance for schools and colleges on gender questioning children should more clearly explain and refer to key concepts in the Equality Act 2010, particularly direct and indirect discrimination, the Equality and Human Rights Commission (EHRC) has said.

In its response to the Government consultation, the EHRC said this would help schools to balance the rights of different groups.

The draft non-statutory guidance, published in December 2023, provides practical advice for schools and colleges, to help them make “considered and lawful” decisions regarding children who are questioning their gender. Consultation on the document ended on 12 March 2024.

The guidance sets out five general principles that schools and colleges can use to frame their response to requests for a child to ‘socially transition’:

1. Schools and colleges have statutory duties to safeguard and promote the welfare of all children.
2. Schools and colleges should be respectful and tolerant places where bullying is never tolerated.
3. Parents should not be excluded from decisions taken by a school or college relating to requests for a child to ‘socially transition.’
4. Schools and colleges have specific legal duties that are framed by a child’s biological sex.
5. There is no general duty to allow a child to ‘social transition’.

The guidance notes that while legislation exists that allows adults to go through a process to change their legal sex, “children’s legal sex is always the same as their biological sex”.

It says that toilets, changing rooms and some sports should be separated based on a child's birth sex.

Responding to the Department for Education’s consultation, the EHRC made a number of recommendations such as making greater reference to key concepts in the Equality Act.

These recommendations also included that:

• The guidance should clearly explain that children cannot legally change their sex, but they can have the protected characteristic of gender reassignment.
• The guidance should uphold the rights contained within the UN Convention on the Rights of the Child. This convention sets out that the weight given to the responsibilities, rights and duties of parents should be consistent with the capacity of the child, which will usually evolve with age.
• Further reference could be made to key rights under the Human Rights Act, including Article 8 (right to respect for privacy and family life), Article 9 (freedom of thought or belief) and Article 10 (freedom of expression).
• The best way to avoid discriminatory practices is for schools to develop policies and flexibly apply them to take informed and sensitive decisions on requests relating to aspects of social transition.

Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said: “We welcome the long-awaited publication of this guidance. It represents a step towards providing schools and colleges in England with the practical advice they need.

“We recognise that this is a sensitive matter, which has been the subject of much polarised public debate. It is also a topic that engages the rights of several protected characteristic groups, including sex, gender reassignment and religion or belief.

“Sometimes it is necessary to balance the rights of these groups. On a day-to-day basis, this challenge often falls to public bodies and service providers like schools and colleges. That’s why it is so essential that they have the information and guidance they need – including a full understanding of the law – to balance pupils’ rights and avoid discriminatory practices.”

Lottie Winson