Yesterday it was revealed that the government is expected to delay issuing transgender guidance for schools after the attorney-general warned that blanket rules here may be unlawful. The government sought advice on whether it would be lawful to introduce a blanket ban on social transitioning, including changes to name, dress and pronouns. In order to understand why the government might have pushed for a blanket rule here, we need to look to the context of uncertainty and misinformation that prevails around the law relating to sex and gender. In that climate, there is a danger that rules with exceptions will be inverted in practice. Activists and advocates may push to represent the law as they would like it to be rather than how it is, as has happened for single-sex services and associations.

The Equality Act covers a list of protected characteristics, including Gender Reassignment, which likely protects most if not all gender distressed children seeking to socially transition in schools. There is a lot of confusion and misinformation about what being protected under Gender Reassignment means, and this is likely affecting how guidance is being drafted.

You are not entitled to be treated as if you are the opposite sex

Some advocates, including some lawyers, argue it means you are entitled to be treated as if you were the sex you identify with unless the policy passes a proportionality test. That’s incorrect. If you’re protected under gender reassignment, you’re entitled not to be discriminated against on that basis. You can’t be fired or denied services because you are trans. This does not mean you are entitled to be treated as if you are the opposite sex.

We know from Green v Secretary of State for Justice that if you don’t have a Gender Recognition Certificate (which no children have), your sex is your biological sex. A trans boy is female for the purposes of the Equality Act. This is very important. It means that to establish direct discrimination, you need to ask whether other females would be required to wear the girls uniform or be referred to by she/her pronouns. They would be, so it’s not direct discrimination. Where this gets complicated is indirect discrimination. Indirect discrimination occurs where persons who share a protected characteristic are put at a particular disadvantage and where there is no legal justification for doing so, assessed using a proportionality test.

Being protected under gender reassignment doesn’t entitle someone to be treated as the sex they identify with. Some very prominent advocacy groups have argued that it does, however. This has led to a lot of confusion. Added to that, some have argued that the structure of the Equality Act is the reverse of what it actually is.

The default is a presumption of equal treatment. There are then exceptions built in, which reverse this presumption in order to allow for single sex services, associations and schools that require distinctions to be drawn on the basis of sex. There is an exception to the exception, however, which says in very rare circumstances, it may be disproportionate to have a single sex service — for example, a men’s only barber that refuses to cut the hair of a short haired woman. Here’s the structure:

1. In general, equal treatment
2. Some areas where presumption is reverted to (in general) unequal treatment, to allow single sex services
3. In very rare cases, an exception to the exception

Some have argued very persistently the exact opposite: that Gender Reassignment means you’ve a right to be treated as if you had changed sex when you haven’t. As such, they have argued that #3 (the exception to the exception) is actually the norm: that it’s the default when it is not. This has caused considerable confusion, leaving duty-bearers in a difficult situation where they don’t know they must do in order to comply with the law.

Anyone drafting guidance for schools will be cognisant that if you say “X is the general rule but in very rare circumstances Y can be done”, there will likely be a concerted effort to make Y the general rule when it is supposed to be the exception.

I suspect the guidance has tried to avoid this because it wants to provide guidance and not create more confusion. Add to this that The Cass Review has indicated that social transition is “an active intervention”, which should be carefully considered before any action is taken, and it’s understandable why the government is concerned with social transitioning in schools. If it is a medical intervention that places children on a path towards irreversible physical changes, it shouldn’t be done without proper medical supervision.

Against that backdrop, the guidance likely sought to provide clear rules with no exceptions. The problem is that rules without exceptions run into problems with proportionality, and proportionality is triggered if a policy has a particular impact upon kids who share a protected characteristic such as gender reassignment.

There is an issue of indirect discrimination and a question of justification for blanket rules. We know that such rules can be proportionate; for example, a blanket rule relating to height and physicality as minimum requirements to be a firefighter is proportionate. The fact that a rule has no exception is very likely a black mark against it in proportionality analysis, however. This is probably what the legal advice from the Attorney General concluded. It will be interesting to see if that advice will be stress-tested at some point, but for now it is the working legal assumption within government.

The result of all this is that there will either be new advice issued that tries to make it clear that the exceptional case really is the exceptional case and not the norm, or legislation will be introduced to make it clear that schools can have blanket rules here without fear of litigation.