On Thursday, it was reported that the Government had decided not to pursue any legal changes before publishing the long awaited “trans guidance” for schools. Some newspapers concluded that the guidance — which would tell schools how to approach children who wish to “transition” — had been abandoned altogether.

However, in a firm denial of the story, the Prime Minister’s spokesperson insisted that the Government has not yet received all the necessary legal advice to determine whether legislative change is required, but that the intent to publish the guidance remains.

The urgent need for this guidance cannot be overstated.

In recent years, radical gender ideology has spread through schools like an epidemic.  80 per cent of schools have children that want to be treated as the opposite sex, 40 per cent allow children to self-determine their “gender” — often without parental knowledge – and in some schools, adherence to trans ideology has taken on cult status with no dissent allowed.

Taking on a new “gender identity” is not a disposable teenage fad

Taking on a new “gender identity” is not a disposable teenage fad like a crazy hairstyle or a crush on a pop star. The long-term physical consequences of transition are well documented, and the devastation caused to family relationships is immense. Paediatrician Hilary Cass concluded that social transitioning is not a neutral act, and indeed there is no evidence that affirming a child’s feelings of “gender distress” has any benefits at all. There are also obvious risks inherent in allowing boys to use girls’ toilets or in allowing boys to take part in girls’ sport, and in keeping secrets from parents. The fact that schools — which have a legal duty to protect children from harm — are endorsing the social transitioning of children in their care should be seen as a major failure of safeguarding that requires Government action.

But it isn’t just the harm being done to “transitioning” children that should cause alarm. When schools allow a child to change their name and pronouns, other children in the school are pressured into accepting this new identity. I’m willing to bet that most adolescents know that humans can’t change sex, so in being forced to collude with the transition of a peer they are being pressured — every time they speak to or about their “trans” classmate — to speak a lie. When people are compelled by those in authority to repeat untruths or remain silent when lies are spoken, they lose their sense of self-worth and ability to resist coercion; it is unthinkable that this should be happening to children in a democracy.

We urgently need guidance that makes clear that schools do not have the authority to treat a child as anything other than their birth sex. But the question that generated this week’s front pages is whether or not the government needs to pass new legislation in order to avoid such unambiguous guidance being challenged in court.

Before the summer, the Attorney General was reported to have advised that DfE guidance that barred schools from setting policies requiring teachers and pupils to call children by their “preferred pronouns” might constitute unlawful indirect discrimination on grounds of gender reassignment. Other experts, including the campaign group Sex Matters, disagree, arguing that the DfE can, within the existing legal framework, instruct all schools to take account of children’s (actual) sex in a wide range of areas in order to fulfil their duty of care and safeguarding. These areas include registration, data protection, toilet and changing facilities. In a report containing a thorough analysis of the current legal position, Sex Matters argues that schools that do take part in socially transitioning children may be breaking the law and exposing themselves to potential legal action.

The very fact that there is uncertainty about whether it is lawful for schools to uphold the reality of biological sex indicates how complex — and ripe for reform — the tangled web of UK equalities and human rights legislation has become. But it also demonstrates how unfair it is for schools to bear the responsibility for interpreting the law in such a contested area. The buck must stop with the DfE.

And while government lawyers argue in private about the likelihood of guidance facing legal challenge, children are being harmed. It is surely the DfE’s duty to publish clear guidance without any further delay, and if this is followed by a Judicial Review then so be it.

In fact, there are potential advantages to such a legal challenge.

Firstly, conducting this debate in public has democratic benefits. This is an issue of immense importance to the future of society. Can boys become girls? Do children have the right to self-identification? Can schools — an arm of the state — lawfully promote contested ideologies? A legal battle will also force those who advocate for children to be socially transitioned to make their case in public. From what we’ve seen so far from Team #NoDebate — for example in the LGB Alliance vs Mermaids case and during the Scottish Gender Recognition Act debacle — the deficiencies of their arguments will rapidly be exposed.

Secondly, if the Government were to lose in court, the judgement would establish precisely what legislative changes are needed to make the guidance lawful. This would give parliamentarians a clear mandate — and public support — to enact those changes.  

I have one plea to the government: get on with it

But whether or not legal change will eventually be required, I have one plea to the government: get on with it. Children are being damaged and confused, families are being torn apart. Schools are forced to take decisions for which they are not qualified and may be sued. Hard left ideologies are becoming embedded in our educational institutions. 

In 2019, the British people elected a Conservative government with the expectation that we would govern as such, upholding conservative principles that keep citizens safe and free. If as Conservatives we can’t conserve the most fundamental foundations of society — such as the distinction between men and women, adults and children, education and indoctrination — then what exactly are the Conservatives for?

We know that voters are fed up with the damage being done by excessive woke ideologies; we should use the final year of this Parliament to prove that we share their frustrations and have the courage to take action.