Schools that follow trans guidance are at 'high risk' of being sued

20th December 2023

Schools that follow government trans guidance are at ‘high risk’ of successfully being sued according to leaked advice from Department for Education lawyers

Education department has published new gender guidance for schools today
It calls for a ‘presumption against’ allowing children to change genders

Leaked legal advice from the government’s own lawyers has revealed schools face a ‘high risk’ of being sued if they follow new guidance.

Advice written by the Department for Education’s lawyers warns several passages in the transgender guidance for schools leaves them vulnerable to being sued and likely to lose cases brought against them.

The leaked advice – obtained by SchoolsWeek – showed several passages in the published document were flagged as unlikely to stand up to a legal challenge.

This includes the guidance that primary school children should always be referred to by their biological pronouns.

Lawyers also raised concerns over a passage which said the guidance should ‘apply in the overwhelming majority of cases and be the starting point for decision making’.

The advice warned this could lead to schools making ‘flawed decisions’ and leaves the guidance open to being challenged as ‘misleading’.

The lawyers also warned the statement ‘there is no general duty to allow a child to ‘social transition” was misleading and inaccurate.

The new guidance was signed off by Number 10 and Equalities Minister Kemi Badenoch

Gillian Keegan has released long-awaited gender identity guidance for schools

The guidance will be subject to a 12-week consultation after the draft was published today

The DfE finally published guidance today stating that pupils should only be allowed to change pronouns in exceptional circumstances.

A new ‘parents first’ approach also makes clear parents must told at the earliest opportunity if children ask staff about shifting gender – although they can have ‘questioning’ discussions without informing relatives.

In almost all scenarios, teachers must not be compelled to use different pronouns for pupils – after some were sacked for holding out.

And the guidance, which will be subject to a 12-week consultation, insists they can still refer to children collectively as ‘girls’ or ‘boys’.

What is in the new guidance?

Underlines the ‘fundamental principle that parents should be involved in decisions about their children’s lives’.
Clarifies that schools and colleges do not have to, and should not, accept all requests for social transition.
Social transition ‘should be extremely rare’ with appropriate safeguards in place and the child’s best interests taken into account.
Schools and colleges ‘should not compel teachers or pupils to use new pronouns’, although there is a caveat where it is ‘necessary to safeguard and all other options have been exhausted, such as addressing the child by their first name’.
Safety must never be compromised by allowing a child of the opposite sex to use single-sex spaces such as toilets.
A ‘gender questioning child’ should be held to the same uniform standard as other children of their sex. Schools may agree changes to the standard school uniform, but not for swimwear.
Schools should make sure competitive sport is fair. This will ‘almost always’ mean separate sports for boys and girls – especially in older age groups.

Schools are being told to protect single-sex spaces, like toilets and changing rooms, and to keep boys out of girls’ sport.

Ms Keegan said: ‘Parents’ views must also be at the heart of all decisions made about their children – and nowhere is that more important than with decisions that can have significant effects on a child’s life for years to come.’

Equalities minister Kemi Badenoch said the gender issue had been ‘hijacked by activists’.

‘This guidance is intended to give teachers and school leaders greater confidence when dealing with an issue that has been hijacked by activists misrepresenting the law,’ she said.

‘It makes clear that schools do not have to accept a child’s request to socially transition, and that teachers or pupils should not be pressured into using different pronouns.

‘We are also clear how vital it is that parents are informed and involved in the decisions that impact their children’s lives.’

However, Ms Truss said the draft guidance – which will now go out for consultation until March – ‘does not go far enough’.

The Tory MP has put forward her own legislation to mean that would mean social transitioning is not recognised by schools or the state in children and puberty blockers and hormone treatment for gender dysphoria would be banned for under-18s.

‘During the many months we have been waiting for its publication, it has become increasingly clear that non-statutory guidance will provide insufficient protection and clarity, and that a change in the law of the land is required,’ she said.

‘That is why I am today asking the Government to back my Private Members’ Bill which would change the law in this area to ensure children are fully protected.

‘I fear that activists and others will be able to exploit loopholes in the guidance and the existing legal framework to pursue their agenda, leaving children at risk of making irreversible changes and with single-sex spaces not sufficiently protected.’

Unions complained that the document leaves ‘many questions unanswered’.

NAHT general secretary Paul Whiteman said: ‘The ongoing delays to this guidance due to political wrangling have been a source of significant frustration, and it is far from ideal for it to be published right at the end of term, after some schools have already broken up for Christmas…

‘Upon an initial look, it would appear this guidance leaves a lot of questions unanswered, meaning school leaders will continue to be placed in an incredibly difficult position.’

Kevin Sexton, executive headteacher of Chesterfield High School in Liverpool told Sky News: ‘I’m not going to change what has worked for our school for the last 10 years.’

Chesterfield is a mixed comprehensive with 1,600 pupils – about 30 of them identifying as transgender, non-binary or genderfluid. It has gender neutral toilets and uniforms.

Before the formal publication of the advice, Mr Sexton said it has made up its own policy while waiting for the government.

Challenged on how parents might feel about not being informed about their child exploring a different gender identity, Mr Sexton said: ‘Children come to our school and hopefully we have a positive experience.

Mother says school ‘actively hid’ daughter. 16, changing pronouns

A mother has spoken of how a school ‘actively hid’ her teenage daughter’s gender identity decisions.

The parent, named as ‘Rachel’, told BBC Radio 4’s Today programme her 16-year-old was allowed to ‘socially transition’ without the family’s knowledge.

‘She asked that she could be called by a different name and pronouns at school,’ the mother said.

‘The school went along with it, apparently with no questions asked but they didn’t tell the family – they didn’t tell me – and they actively hid it from me for about four months despite me being in touch with the school and expressing concerns about my daughter’s wellbeing. They kept it hidden from me.’

The parent said they became ‘very concerned about things that were going on, her dress and behaviour’.

‘I reached out to the school, and they told me to wait until she felt ready to talk to me. I had several conversations with them over the course of a few months. At no point did they tell me what was actually going on…

‘She had said nothing to us at home, she had given no indication that she felt that way. After talking to the school I was trying to give her opportunity to open up and talk to me.

‘But it didn’t happen and the school just kept telling me to wait. They did say they were encouraging her to talk to me but it just didn’t happen and they weren’t honest at all.’

The mother said the guidance must ‘make sure that parents are included in whatever is going on with their children’.

‘At the end of the day she is still a child, I have parental responsibility, it is up to me to care for her, her wellbeing physical and mental,’ she said.

‘I have to say I am completely horrified that the school did this and kept me in the dark.’

When the school were challenged about refusing to inform family, they apparently ‘claimed that their lawyers had implied that they could be sued by my 16-year-old daughter’

‘I find it completely ridiculous, but that is the excuse they gave,’ she said.

‘If we don’t create a positive experience, they won’t come to school, and they will be more unsafe, and more likely to make bad choices.’

The school insists parents should only be notified if there is a safeguarding risk.

Penni Allen, Chesterfield’s director of wellbeing, told Sky News: ‘If I picked up the phone and had to tell a parent… your child has just asked this question today. Your child is feeling like this today. We’d never be off the phone. We would have a hotline.’

One parent, named as ‘Rachel’, told BBC Radio 4’s Today programme how her 16-year-old was allowed to ‘socially transition’ at school without the family’s knowledge.