Gender-questioning children under draft KCSIE 2026

The draft 2026 revision of Keeping Children Safe in Education (KCSIE), if adopted, would introduce significant statutory changes in relation to gender-questioning children. Most notably, the Department for Education wishes to embed this content directly within KCSIE itself, rather than issuing standalone guidance.

This structural change is important. Schools and colleges will likely be required to “have regard” to these provisions as part of their statutory safeguarding duties. The final guidance therefore will carry regulatory weight and will form part of the inspection and compliance framework.

This article considers the draft provisions through a safeguarding lens and highlights the practical implications for schools if the draft is approved in its current form. It is therefore not the case that these changes have already come into place (although they do reflect what we already consider is best practice); however schools will want to start considering what may be required of them.

What has changed: integration into the statutory framework

The draft KCSIE 2026 embeds guidance on gender-questioning children directly within the statutory safeguarding framework. It draws on the Cass Review (April 2024) and emphasises a “very careful approach”, describing social transition as an active intervention which may have significant effects on a child’s psychological functioning and longer-term outcomes.

In summary, the draft provisions introduce the following key statutory requirements:

• No initiation by schools: Schools should not initiate social transition. The guidance applies where a child or parent raises a request.
• Social transition as an active intervention: Social transition is framed as requiring careful assessment, with particular caution expected in primary schools.
• Best interests as the starting point: When considering a request, schools must first determine what is in the best interests of the child and other children. The outcome may not align with the child’s wishes.
• Parental involvement as the default: Parents should be involved as a matter of priority unless doing so would place the child at risk of harm. In such cases, the DSL must be involved before decisions are taken.
• Structured and documented decision-making: Schools should adopt a clear and recorded decision-making process. Documentation is not optional; it is integral to compliance.
• Accurate recording of biological sex: Schools are legally required to record a child’s biological sex accurately wherever it is recorded, and relevant staff should be aware of biological sex to fulfil safeguarding duties.
• Equality and human rights compliance: Decisions must comply with safeguarding legislation and with obligations under the Equality Act 2010 and Human Rights Act 1998, including undertaking a balanced consideration of the impact on all affected children.
• Review and reconsideration obligations: Schools are expected to review decisions where circumstances change and to reconsider arrangements agreed prior to the guidance coming into force where appropriate.

Taken together, these provisions would reframe gender-questioning issues explicitly as safeguarding matters rather than solely equality or inclusion considerations. The emphasis is on structured, case-by-case assessment, legally reasoned balancing, and defensible record-keeping, rather than informal or blanket approaches.

Single-sex spaces: mandatory requirements

The draft KCSIE would introduce express provisions concerning single-sex spaces, including toilets, changing facilities and boarding accommodation. While grounded in existing legislation, these provisions now appear clearly and directly within statutory safeguarding guidance.

Toilets

• Schools must not allow children to use toilets designated for the opposite biological sex.
• Separate toilets must be provided for boys and girls aged 8 and over.
• Where a child does not wish to use facilities designated for their biological sex, schools should consider alternative individual facilities.
• Alternative arrangements should not compromise the provision of single-sex facilities.

Changing rooms and showers

• Children aged 11 and over must not undress in front of a child of the opposite biological sex.
• Access to opposite-sex changing rooms must not be granted as part of social transition support.
• Alternative arrangements (for example, enclosed private facilities) should be considered.

Boarding and residential accommodation

• Children must not share overnight accommodation with a child of the opposite biological sex.
• Social transition must not include access to opposite-sex boarding accommodation.

These provisions are mandatory and will require careful operational implementation, particularly in schools with older estates or boarding provision.

Single-sex sport: safety, fairness and structured assessment

The draft KCSIE also clarifies the application of the Equality Act exception for competitive sport.

• Where safety concerns exist, sport must be provided in single-sex groups, with no exceptions.
• Where no safety concerns arise and a child requests to participate differently, schools must consider the child’s best interests, the impact on other pupils, and the objective of safe and fair participation.

Again, the emphasis is on structured assessment and documented decision-making.

The regulatory risk: process will matter as much as outcome

Across the draft provisions, a consistent safeguarding theme emerges. Decisions are required to be child-centred, but not child-led. Parental involvement is positioned as the default. DSL oversight is expected in defined circumstances. Accurate, contemporaneous record-keeping is essential. And importantly, schools are expected to revisit decisions where circumstances change or where arrangements pre-date the new framework.

From a regulatory perspective, the principal risk for schools is unlikely to arise solely from the conclusion reached in any individual case. Rather, risk is more likely to emerge where there has been:

• A failure to follow a careful and structured decision-making process;
• Inconsistent application of policy across comparable cases;
• Inadequate or retrospective documentation; or
• Misalignment between safeguarding policies and equality frameworks.

In this respect, the draft guidance signals that the quality of the process will be as significant as the outcome. Schools will need to be able to demonstrate that decisions were legally balanced, proportionate and grounded in safeguarding duties.

Recommended actions for schools

In light of the draft KCSIE 2026 provisions in relation to gender-questioning children, schools should consider the following steps:

• Review and update safeguarding policies to reflect the statutory framing of gender-questioning children. There is no requirement for a separate policy, however, we recommend a documented process addressing social transition requests, including parental involvement, decision-making and recording processes, which could be covered in an existing policy or as an Appendix to the safeguarding policy.
• Ensure DSL involvement in case assessment and establish clear escalation pathways.
• Audit single-sex facilities (toilets, changing rooms, boarding/other accommodation) for compliance with the draft provisions.
• Develop protocols for alternative facility arrangements that preserve statutory single-sex requirements, including on school trips.
• Review PE and sports policies, establishing a structured framework for safety and fairness assessments.
• Align equality and safeguarding policies to ensure consistency and avoid internal contradictions.
• Establish robust documentation templates for recording assessments and decisions.
• Train governors, senior leaders and staff on the statutory framework and oversight responsibilities.
• Consider whether historic arrangements require review once the guidance is finalised.

Early policy alignment and governance oversight will reduce regulatory exposure and support careful, child-centred decision-making.

Conclusion

The draft KCSIE 2026 provisions, if approved, will mark a significant development in the statutory treatment of gender-questioning children. By embedding the guidance directly into safeguarding legislation, the Department for Education has explicitly placed the issue firmly into the domain of regulated safeguarding governance.

For schools, the central task is not to adopt a particular position, but to ensure that decisions are careful, structured, legally balanced and properly documented.

Under the proposed framework and unless mandated by law (such as in the case of single sex toilet facilities which have long been mandated for pupils aged 8 and over), defensible practice will depend less on the outcome reached and more on the quality and integrity of the decision-making process.

Miriam Carrion Benitez is a Partner at VWV.