Schools in England and Wales have been warned by one of the country’s leading equality and human rights barristers that the “toolkit” many of them use to support gender-questioning children is unlawful.
The toolkit, introduced by Brighton and Hove council in 2021 and subsequently replicated by a number of other local authorities, says schools should “respect” a child’s request to change their name and pronoun as a “pivotal” part of supporting their identity, as well as other changes such as switching to wearing trousers or a skirt.
It emphasises that schools “will want to involve parents and carers in discussions”, and recommends a “watch and wait” policy when a young person first comes out to a “trusted” teacher, not pushing them in any particular direction.
But a legal opinion by Karon Monaghan of Matrix Chambers concludes that schools and councils using the toolkit are very likely to be in breach of equality and human rights legislation, and at risk of being sued by unhappy parents.
She argues that the Equality Act affords protection not only to trans-identified young people, but also to those who are gender-critical. Requiring everyone in school to use a child’s chosen pronouns would, she said, “be in direct conflict” with the beliefs of staff and children who are gender-critical, and might “violate their rights”.
The 75-page document tackles issues including toilets, sport and changing facilities. Monaghan says the toolkit is wrong to suggest that a trans pupil has a legal right to choose to use toilets designated for the opposite sex, and argues that allowing a trans girl to use a girls’ changing room could violate other pupils’ right to privacy or put them at “physical risk”.
“There is a worrying lack of appropriate guidance on safeguarding in the toolkit,” she says.
“There is an emphasis on supporting children through social transition without highlighting any of the risks that may be associated with that. As the interim report of the Cass review stated, this may not be thought of as an intervention or treatment, because it is not something that happens within health services.
“However, it is important to view it as an active intervention because it may have significant effects on the child or young person in terms of their psychological functioning.
“It anticipates that trans-identified children will access single-sex toilets, changing rooms and residential accommodation designated for children of the opposite sex. These are key milestones in social transitioning and there is no guidance on establishing the appropriateness of these steps, or any indication that external support from a clinician should be sought first.
“And nor is there any recognition or understanding of the best interests and welfare of the child who may be psychologically impacted by social transition.”
In response, Councillor Lucy Helliwell, co-chair of Brighton’s children, families and schools committee, said: “Our Trans Inclusion Schools Toolkit has been developed in order to support schools, teachers, gender-questioning young people and their parents on a case-by-case basis.
“As a local authority that works to ensure all our children and young people live happy, safe and positive lives, we’ll always be committed to providing support that protects and promotes their welfare.”
The row over legal advice comes at the end of a week in which a landmark review into the medical treatment of gender-questioning children was published. The Cass review said children and young people had been let down by a lack of research and “no good evidence” on the long-term outcomes of medical interventions to manage gender-related distress, in a debate that has become exceptionally toxic.
But while the findings of the Cass review were broadly welcomed by the main political parties, medical professionals and prominent transgender commentators, the debate over how to deal with children who wish to socially transition is more polarised.
The issue of how to deal with children who choose to socially transition does not involve any medical intervention, but relates to questions including whether a school should refer to a child using a different pronoun or name, what uniform they wear and access to single-sex or unisex toilets and changing facilities.
The new legal analysis by Monaghan was commissioned by a family in Brighton who are arguing that their child’s school helped their child to socially transition without their consent, because it was using the toolkit. The family wrote to the council on Friday threatening possible legal action if it does not withdraw the guidance within two weeks.
The child’s mother, who asked not to be named in order to protect the identity of her child, told the Observer: “Our child was socially transitioned at school by a group of teachers who are quite active in the trans rights arena, despite our child’s complex mental health needs, trauma and autism.”
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She said she and her husband “thought we had agreed a unique plan with the head” that the school should support only what she called a “pre-transition phase” until the child left secondary school. Instead, she said, they had been “shocked” to discover the school had supported their child socially transitioning. The family is now estranged from their child.
The mother said it was understandable that teachers were “looking for a safety net” and for advice to follow in navigating an increasingly fraught and contested area.
But she warned: “This toolkit is not just a little bit wrong, or only wrong in certain limited respects: it is catastrophically wrong from top to bottom.”
A spokesperson for the Department for Education said: “It is unacceptable for parents to be excluded from decisions regarding their children.
“Our draft guidance reflects the law, which schools have a duty to follow.
“The guidance already reflects the principles from the final Cass review, making clear that social transition should be extremely rare and any steps towards social transition should be incredibly cautious, taking account of available clinical evidence and any special educational needs, and prioritising parents’ wishes.”
Meanwhile, in a sign of how fraught the issue has become in schools, teaching unions warned that the government’s own guidance on how to deal with gender-questioning children could also lead to schools facing legal action.
It states that there is “no general duty” on schools to follow pupils’ wishes to socially transition, including using different pronouns or names, and that parents must almost always be told if their child talks to a teacher about such things.
The National Association of Head Teachers union said: “We are particularly concerned that, as it is currently drafted, aspects of the guidance may leave schools at ‘high risk’ of successful legal challenges.”
Margaret Mulholland, an inclusion specialist at the Association of School and College Leaders (ASCL) union, said: “Schools are doing their best to navigate this complex territory in the best interests of all the children and young people in their care.” She said this was difficult “in a climate of polarised views and risks of legal challenges”.
The union said the government’s failure to mention the mental health and wellbeing support that gender-questioning children might need was a “significant oversight”.
The ASCL told the Observer this weekend that it had called on the government “to take on and represent any legal challenges against schools” which are following its guidance.
