| SPOTLIGHT |
Just before Christmas, the Department for Education (DfE) published its long-awaited draft guidance on gender questioning pupils, which has inevitably resulted in some controversy, writes Philip Wood.
The Guidance for Schools and Colleges: Gender Questioning Children is subject to a 12-week consultation, so is unlikely to be in effect until late spring 2024 at the earliest given the likely responses and high-profile nature of the guidance.
Taking into account early reactions to the guidance, it is also quite possible that following publication, depending upon what any final version states in some areas, it could be subject to a formal challenge.
When it is finalised, it will be non-statutory and aimed at all schools including independent schools, and further education providers, in England.
Non-statutory
The non-statutory nature of the guidance means that whilst schools should consider and understand the final version when it is released, they will be able to depart from it. Advice on complex cases that schools face will still be important given how broad the guidance is in many areas.
Five key principles
The guidance is framed around five key principles:
Many of these, in the context of current legislation, are not going to be controversial because they link to existing pieces of guidance and/or legislation.
Exceptions to the rule
The draft guidance makes it clear that schools should be involving parents in discussions about a child that is questioning their gender, except where there are serious risks of harm to the child.
Harm in the context of child protection, is not limited to physical harm. The framing of the guidance likely emanates from some limited research undertaken by Policy Exchange that showed that 72% of schools surveyed were not reliably involving parents in these decisions.
It is clearly always sensible to involve parents where possible and where older pupils are hesitant about doing so, the role of schools is likely to act in a supporting way to have those discussions.
Bullying vs freedom of speech
Whilst the draft guidance states that bullying should not be tolerated, there can be a tension with freedom of speech arguments and gender critical views, which could apply both to other pupils and/or staff.
On many of the practical areas that the draft guidance covers, including toilets, changing rooms, sports and single sex schools, the advice accords with existing guidance to the sector from NGA/CST/ASCL/NAHT.
Names and pronouns
Where the draft guidance does go further than existing pieces of guidance available to the sector, is in relation to names and pronouns. Here the advice is that schools should consider the views of others in the school before agreeing to change a pronoun of a pupil, with the draft guidance stating that it is expected that there will be very few occasions where there will be an agreement to change a pronoun.
Whilst the Cass Review makes clear that changing pronouns and names of a child is not a neutral act, and one that schools and other bodies must be careful about, similarly it is also clear that not doing so is also not a neutral act. We still await the final report from the Cass Review, which is due to cover the role of schools on this difficult issue.
Contribute to the consultation
Gender issues in schools remain a significantly untested area in the courts and the guidance being published may mean that those who hold strong views on either side of this political debate use the final guidance being published to challenge the position taken by the DfE.
The consultation runs until 12 March and responses can be provided here. We would encourage schools and trusts to provide their real-world examples as part of the consultation to bring to life the challenges schools are facing in practice in this area.
Philip Wood is a Senior Associate at Browne Jacobson.
