Education sector sounds the alarm over transgender guidance

Calls for government to back schools and colleges in legal cases, fears guidance clashes with safeguarding rules and isn't in students’ best interests

Calls for government to back schools and colleges in legal cases, fears guidance clashes with safeguarding rules and isn't in students’ best interests

Sector bodies have sounded the alarm in their responses to a consultation on the government’s controversial transgender guidance, which closed this week.

Concerns included that guidance breaks the law, does not align with safeguarding duties, unhelpfully conflates schools and colleges, conflicts with the responsibility on leaders to act in a student’s best interests and does not help staff deal with practical issues.

Here’s our round up of everything you need to know.

Colleges need legal backing

As revealed by FE Week’s sister title Schools Week, the government’s own lawyers said schools and colleges faced a “high risk” of successful legal challenges if they followed several elements of the guidance.

The NASUWT teachers’ union, in its submission, said trust in the “legality of the draft guidance will remain low” until ministers can “provide more convincing evidence that it reflects the best possible understanding of the legal position”.

As the proposed guidance is non-statutory, NASUWT added it “does not provide protection” from legal cases against those “who believe that their statutory or regulatory rights have been breached”.

NASUWT, the Association of School and College Leaders (ASCL) and the school leaders’ union NAHT, also said the guidance does not fully align with equalities legislation and the Keeping Children Safe in Education safeguarding duties that schools and colleges must follow.

Julie McCulloch, ASCL’s director of policy, said if government “cannot provide assurance that schools and colleges will not be leaving themselves open to legal challenge by following this guidance, then the government itself must commit to taking on any legal challenges that arise against schools and colleges.”

Conflation of schools and colleges flawed

The guidance applies to students aged under 18 in further education and sixth-form colleges, as well as schools. However, confusingly, the guidance interchangeably described gender-questioning students in colleges as “students,” “pupils,” and “children”.

It does not apply to independent training providers, even those delivering apprenticeships or study programmes to under-18s.

The University and College Union said the consistent conflation of schools and colleges fails to “take account of the nature of relationship between young person, lecturer and further education college”. 

For example, there is focus on trying to ensure community cohesion throughout the document, including a section on engaging parents. But from an FE college perspective there is a “big difference between school children and young people at college”, UCU warned.

“For a considerable number of reasons the primary relationship at college is between the young person and the people they deal with whilst there, whereas at school there is considerably more interface with parents. The lack of any focus on the experience of young people at college within the document produces a flaw throughout.”

The Association of Colleges agreed. Its submission said: “The structure of the guidance groups schools and colleges together. This is not age appropriate and does not align with the way colleges engage with families, nor with other rights and competencies that 16 to 17-year-olds have in law.

“Some students arrive at college with an established view of their experienced gender identity, so it is inaccurate to frame the guidance as referring to ‘gender questioning children’.”

AoC added that it is “not obvious” why the age of 18 is considered the threshold below which this guidance applies.

In student’s best interests?

Leora Cruddas, chief executive of the Confederation of School Trusts, said the guidance covered a “sensitive area, and it is important that we get it right so that our young people are safe and well-supported”.

But the body is in talks with the Department for Education about “the relationship of this draft guidance with statutory guidance, most crucially on safeguarding.

“We feel it is important that a child-centred approach based on individual circumstances is put at the centre of decision-making.”

NASUWT added the need for schools and colleges to act in the best interest of young people “underpins some of the most important legal obligations place on them, particularly those related to child protection and safeguarding” – but said the guidance conflicts with those.

The NAHT, which published a summary of its response, added it was a “significant oversight for consideration of the mental health and well-being of children and young people, not to be one of the overarching principles”.

ASCL, in its submission, also highlighted “confusion and concern” around how the guidance applies to youngsters of different ages.

For instance, the union pointed out guidance said requests to transition from primary school pupils “should be treated with greater caution”, but then adds such children “should not have different pronouns” used – which implies “this key aspect of social transitioning should never be permitted”.

AoC added that at times the guidance seems to apply only to schools, but at times to colleges also. The question about uniform in “schools and colleges” is “particularly unclear”, the membership body said.

“The guidance does not recognise the different needs of college students or the different purposes of colleges as institutions – specifically the purpose of preparing students for adult life and working life.”

Doesn’t help with practical issues

Dr Patrick Roach, general secretary of NASUWT, added the guidance “fails to provide effective support on practical issues that schools and colleges may face, including on working with children who have already transitioned with the support of their families”.

Both ASCL and NASUWT highlighted that the guidance does not provide support for children who have already transitioned.Concerns were also raised about the proposed notion of “watchful waiting” in cases where schools and colleges may wish to accommodate “degrees of social transition”.

NASUWT said this would “appear to be of little practical assistance in supporting decision-making”. 

“Specifically, the guidance does not set out what schools and colleges should watch for, nor does it help them to determine a reasonable duration within which they should watch and wait in particular cases.”

ASCL also highlighted the expectation put on schools and colleges to “make decisions before a pupil is permitted to socially transition which, in our view, require clinical expertise”.

Meanwhile on parents, NASUWT added: “The guidance is silent on the most effective ways of working with parents who are supportive of their child’s decisions.”

So what should happen now?

Unions agreed that having guidance was a helpful step.

But the NAHT said it was essential” government “release any legal review they receive on the final guidance, and be explicit throughout the guidance, any areas which may, despite best efforts for clarity, remain legally ambiguous, and which may pose a legal risk to schools and colleges, in order that they can obtain their own legal advice”.

Roach said he wanted the draft guidance withdrawn and replaced with guidance that allowed schools and colleges to “act with confidence in what is a complex and sensitive aspect of their work”. Any revisions should be made after “full consultation” with the sector.

The NAHT added the final guidance must be “focused solely on clarifying operational and practical issues, such as access to single-sex spaces and admissions registers”, which is at the minute lacking.

Guidance should also be accompanied by training, support and resources for schools and colleges.

ASCL acknowledged the guidance was an “important and necessary piece of work on a sensitive, complex and contentious issue”. 

But the union flagged “increasing concern” on a wider issue of “government by expectation”.

“Across a wide range of issues, the government now sets expectations for action by schools and colleges through non-statutory guidance, rather than clarifying and codifying the changes they wish to see in legislation.

“This is creating significant confusion, unhelpfully blurring the lines between what schools and colleges are legally required to do, and what the government of the day would simply like them to do… More clarity on this is required.”

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