Photo by Mark Kerrison/In Pictures via Getty Images

Return from Planet Gender

New guidance for schools on gender questioning children is a good start

Artillery Row

The Department for Education, together with the Government’s Equality Hub, has published long-awaited guidance for schools in England on how to respond to children with gender issues.

Over the past ten years, in the absence of clear guidance, gender-identity lobby groups have been telling schools that they must act as centres for paediatric transition, encouraging and enabling children to imagine that being a girl or a boy and growing up to be a woman or a man is a matter of feelings and self-determination.

A resource from The Proud Trust, for instance, tells primary-aged children to think about whether they want to live on Planet Girl (where everyone wears pink and dresses) or Planet Boy (where everyone wears blue and trousers) or on Planet Non-binary.

The new guidance brings schools back to Planet Earth, where being a boy or a girl is just a fact of life, not a matter that responsible adults get confused about.

At Sex Matters, we have rated it at 76 per cent — a very good start but still room for improvement.

Should schools pretend that any child is the opposite sex?

The guidance is largely common sense to anyone who has not been trained or frightened into submission by the gender-identity lobby. Should a boy who is unhappy about being a boy be allowed into girls’ toilets, showers and changing rooms to make him feel more comfortable or validate his declared “gender identity”? No. Should a girl who wishes she were born a boy be told that she is one, and be allowed to use the boys’ toilets, showers and changing rooms, or to play rugby on the boys’ team? Again, the answer is no.

Should schools pretend that any child is the opposite sex? No. Should teachers promise to keep secrets with a teenager who tells them they are feeling distress about their pubescent body, have been talking to strangers on the internet about these feelings, and binding their breasts or tucking and taping down their penis? An even more emphatic no.

Schools should work to make sure that boys and girls who are unhappy about their sex are not bullied, that they are kept safe and get an education. But they cannot pretend that any child actually is the sex they are not.

The charity Mermaids, which has up till now had a free run at giving out bad advice to schools, has responded to the draft guidance, calling it “unworkable, out of touch and absurd”. It says the government should have listened to “trans young people” and “inclusive educators” and that it is difficult to understand how “excluding trans pupils from facilities, sport bans or allowing students to be misgendered are compatible with existing equalities law”.

The thing is, this guidance doesn’t talk about “trans pupils” or “misgendering”. These are, as it rightly points out, contested ideological language. Nor does it talk about “sports bans” or excluding children from facilities. It doesn’t use the terms “trans child”, “ trans boy” or “trans girl”. Nor does it say that everyone has a “gender identity”.

It simply starts from the principle that schools should not become confused about what sex children are, or lose sight of their specific legal duties that relate to sex, or their general duties to safeguard the welfare of all children.

The Equality Act 2010 says that people with the protected characteristic of “gender reassignment” (which means anyone who is “proposing to undergo, is undergoing or has undergone a process of reassigning … attributes of sex”) should not be discriminated against because of this. Contrary to what Mermaids and the rest of the gender lobby say, it does not mean that other people have to pretend that someone who declares a trans identity has changed sex, or that such a person should be allowed into spaces and services for members of the opposite sex. It simply means they shouldn’t be excluded in general (such as from school).

Equality law also protects others from discrimination and harassment — including on the basis of sex. The distinction between the two protected characteristics is very clear in schools, which are rules-based institutions where every child’s sex is known (it is recorded when they are first registered).

It is worth reflecting on how far this guidance has come. The Equality and Human Rights Commission, under former management which had a cosy relationship with Stonewall, started working on guidance for schools in 2017. A draft was leaked in 2019. It imagined that equality law required a world where children could transition by changing their name and then be enrolled into school in the sex of their choosing (perhaps even at a single-sex school). They would be referred to as being the opposite sex and allowed to use opposite-sex facilities and play single-sex sports with the opposite sex.

It imagined that all this might be kept secret from other children and their parents — even as children went through puberty.

It said: “If a pupil has legally changed their name, then the school must use the pupil’s new name and relevant pronoun” and that “concerns about repeated or deliberate use of a previous name or pronoun should be investigated and appropriate steps taken to address the issue”.

The new guidance is almost a 180-degree change of direction from this, which is extremely welcome. But there are still missed opportunities.

Activist teachers are already saying that they will not comply with it

It is less clear in ruling out “social transition” — the linguistic pretence of changing sex — than many, including Sex Matters, think it should be. It tells schools that they have discretion to allow some elements of this pretence in exceptional cases, such as occasionally allowing a child to go by “preferred” (that is, wrong-sex) pronouns. It leaves school leaders with a long list of factors they should consider when a child says they want to socially transition, such as the benefit to the individual child and the impact on the school community.

On pronouns, it says: “It is expected that there will be very few occasions in which a school or college will be able to agree to a change of pronouns. On these rare occasions, no teacher or pupil should be compelled to use these preferred pronouns and it should not prevent teachers from referring to children collectively as ‘girls’ or ‘boys,’ even in the presence of a child that has been allowed to change their pronouns.”

But it undermines this by referring to not using preferred pronouns as an “honest mistake” — rather than simply telling the truth about a child, which may be for important reasons to do with keeping that child and other children safe.

When it comes to this part of the guidance, we agree with Mermaids (although for different reasons) that it is “unworkable, out of touch and absurd”.

Some argue that that the guidance is not strong enough because it is not statutory. Activist teachers are already saying that they will not comply with it. We think it can be given teeth by using existing laws. Schools and teachers are already covered by statutory guidance on safeguarding and special educational needs. Any decision about a child that deviates from a school’s usual rules for girls and boys (such as making special provision for a child to use a gender-neutral facility that is not generally available to all pupils) should only ever be made within these frameworks.

To support headteachers to resist the demands of activist teachers, troubled children and ideological parents, as well as ideological groups like Mermaids, the DfE should produce clear model policies that are in line with the guidance. Schools that want to reject these models and go their own way can do so. If they then face legal action, though, they will be much safer if they can show that they have followed official guidance, regardless of whether it is statutory.

The guidance is out for consultation, and it will be pulled in both directions: with some trying to keep it spiralling outwards to Planet Gender and others trying to guide it to a safe landing back on Planet Earth. The DfE should respond by making the final version even clearer, rather than by passing the decision-making, controversy — and legal risk — down to individual schools.

Enjoying The Critic online? It's even better in print

Try five issues of Britain’s newest magazine for £10

Critic magazine cover