The government must commit to fighting legal challenges brought against individual schools or trusts that follow its transgender guidance, a school leaders’ union has warned.
The Association of School and College Leaders (ASCL) said it is “imperative” that schools are confident that they will not be open to legal challenge, in a submission to the government’s consultation on the guidance.
The Department for Education has today closed its 12-week consultation on long-awaited draft transgender guidance for schools and colleges on how best to support students questioning their gender.
According to the guidance, teachers and students in England will not be “compelled” to use a child’s preferred pronoun.
The DfE also advised that at primary school, children “should not have different pronouns to their sex-based pronouns used about them”.
Does transgender guidance align with equality law?
However, unions, in their submissions to the consultation, have raised concerns about the risks that the draft guidance poses to schools.
Both the ASCL and the NASUWT teaching union have asked how schools and colleges would be expected to use the guidance in relation to students who have already socially transitioned.
Whether the guidance fully aligns with equalities legislation, such as the Equality Act 2010, is also questioned by both unions.
According to the Equality and Human Rights Commission, the Equality Act says that individuals must not be discriminated against because of gender reassignment.
Under the legislation, gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign your sex.
The ASCL’s submission states that “given the uncertainty around the extent to which this guidance aligns with equalities legislation, and the lack of existing case law in this area”, the government “must commit to taking on itself any legal challenges against individual schools, colleges or trusts which are following this guidance”.
Guidance ‘unlikely to withstand legal scrutiny’
The NASUWT also voiced concern about schools facing legal challenges as a result of following the guidance.
“The liability for any breaches of legal duties in this respect rests with schools and colleges, rather than with ministers and the government,” the NASUWT warned in its submission.
The union added that much of the advice set out in the guidance is based on the premise that schools have a “discretion unfettered by the provisions of the Equality Act to decide how children in these circumstances should be supported and treated”.
“It is difficult to understand how advice provided on this basis could withstand any serious legal scrutiny,” the NASUWT wrote.
Schools and colleges are unlikely to take full account of guidance that appears to conflict with their duty to “act in the best interests of individual children”, the NASUWT said.
Earlier this year a coalition called for the proposed guidance to be dropped and for schools to only engage with parents of a gender-questioning child “with explicit consent” of the young person
Schools ‘urgently need clarity’
While the guidance remains in draft form, schools are in legal “limbo”, a legal expert has warned.
“It remains unclear how quickly the DfE will be able to consider the responses and make necessary amendments to the guidance,” said Philip Wood, senior associate at Browne Jacobson.
“Being in the current state of limbo of draft guidance that is not finalised is unhelpful to schools, who urgently need clarity on the approach to take and the expectations they are to meet in relation to gender-questioning pupils,” he added.
Mr Wood said he expected a “significant level of challenges” being made to the guidance unless the DfE makes changes.
The DfE delayed the guidance several times last year, with prime minister Rishi Sunak promising it by summer 2023.
Last year the ASCL, the NAHT school leaders’ union, the National Governance Association, the Institute of School Business Leadership, the Chartered College of Teaching and the Confederation of School Trusts produced their own guide for schools in the absence of any from the government.
The DfE has been approached for comment.
For the latest education news and analysis delivered directly to your inbox every weekday morning, sign up to the Tes Daily newsletter
