The government needs to put safeguarding first
It should not allow social transitioning in schools
The Equalities watchdog, the Equality and Human Rights Commission (EHRC) has updated its Technical Guidance for Schools (2014). The new guidance is a great improvement on the old — more in line with the Equality Act 2010 and with less ideological waffle. The passage, for example, “he or she starts or continues to dress, behave or live (full-time or part-time) according to the gender with which he or she identifies as a person” (whatever that means) has gone. It is replaced by a simple description of the protected characteristic Gender Reassignment from the Equality Act definition.
The old, woolly guidance on “segregation connected to gender” is replaced with clear guidance on schools’ legal duty to provide single-sex toilets and changing-rooms. The most significant change, however, is that section 3.35 from the 2014 guidance has been completely removed. Section 3.35 stated that not referring to a “previously female” pupil as a boy would result in direct Gender Reassignment discrimination.
This is the section that has caused the biggest problems in schools over the past decade: the surge in the social transition of children, often behind their parents’ backs. So much harm has been done by this one point.
It is a significant change as the government deliberates over the question of whether the protected characteristic of Gender Reassignment means that a ban on the social transition of children represents unlawful discrimination.
The confusion over whether children have the legal right to be “affirmed” in schools by their teachers and peers is largely the result of work by transgender activists, who have misrepresented both the function of the protected characteristics in the Equality Act and their application to children. Conflation of legislation with ideology has been compounded by a failure to understand safeguarding.
The first key point is that, whether we’re talking about adults or children, “Gender Reassignment” is not Gender Identity Ideology.
The Equality Act does not impose ideological rules upon society
These are two completely separate things. The Gender Reassignment protected characteristic does not protect a belief in “gender identity”. The Equality Act is not an instrument that imposes ideological rules and beliefs upon society.
In line with the new EHRC Technical Guidance for Schools, the government must separate ideology from the law and be clear about which is which. Concepts and terms that fall under the banner of ideology include: gender identity, gender affirmation, misgendering, transgender child, cisgender, non-binary, preferred pronouns, deadnaming, gender assigned at birth. None of these concepts appear in the Equality Act.
It is easy to recognise guidance that is based on ideology and not on the law — for example, the idea that people have the right to use toilets that “align with their gender identity”. Social transition is simply another way of describing the “gender affirmative” approach towards children; it is an ideological model developed by activists. To “affirm” a girl as a boy is the expression of a belief in “gender identity” and that this identity overrides the child’s sex. It is not a science-based or clinically developed approach.
The second key point is that no protected characteristic in the Equality Act overrides the safeguarding of children. The government’s dithering has reignited the argument amongst parents that Gender Reassignment should not apply to children at all, as it “adultifies” the child. However, much like the protected characteristic of sexual orientation, the point is not that it should never be applied to children, but that it should not be applied to children as if they were adults. This is basic safeguarding.
Of course, children are not “transsexual persons” as defined in the Act and cannot possibly understand what it means to be “proposing to undergo, undergoing or having undergone a process to reassign their sex” in the words of the Act.
Any child proposing to “reassign their sex” does so as a child, at a child’s level of development and understanding.
If you are using a protected characteristic in a way that treats children as if they have adult levels of maturity and understanding, you are doing it wrong. No protected characteristic abnegates our responsibility as adults to recognise that children are children, or overrides our knowledge of child and adolescent development.
In this particular context it is not only the child who identifies as trans who may be placed outside normal safeguarding frameworks: it is a safeguarding risk for every other child in the school to be confused about sex and related language; and for girls in particular to be trained to suppress their intuitive recognition that a person is male. Nor should any child be given the responsibility of actively intervening in another child’s treatment; children are not developmentally capable of making informed decisions about an experimental approach towards other children.
To use the protected characteristic to treat children as adults would be a huge safeguarding failure. In fact, it may fall under one of the government’s own definitions of emotional abuse, in the Department for Education’s statutory safeguarding guidance for schools Keeping Children Safe in Education:
It may feature age or developmentally inappropriate expectations being imposed on children. These may include interactions that are beyond a child’s developmental capability.
In order to produce transgender schools guidance that is fit for purpose, there must be clarity on these two points: legislation is not ideology, and child safeguarding always comes first. To spell it out: “affirming a child’s gender identity” is ideology, not law. Social transition of one child is adultification not just of that child but of all children in the school, a complete failure of safeguarding.
The new EHRC Technical Guidance for Schools represents a first step in moving from ideology back to what the law actually says. The Government’s responsibility now is to take this guidance and apply it according to well-established principles of child safeguarding. It should be abundantly clear that allowing “gender affirmation” or social transition in schools would be a massive failure to fulfil this responsibility.
Enjoying The Critic online? It's even better in print
Try five issues of Britain’s newest magazine for £10Subscribe