Future of Legal Gender

In 2020 our spokeswoman Tanya Carter was interviewed for the Future of Legal Gender project, based at King’s College London.  The final report of this project has now been published.

The Future of Legal Gender was a mock law reform project funded by the Economic and Social Research Council, exploring the implications of reforming how English law deals with sex and gender. It has a particular focus on the idea of “decertification”, where people would no longer have a legal sex/gender, or at least not one based on the sex recorded at birth. 

The report authors spoke to a wide range of people, and asked Safe Schools Alliance for an interview.  We were pleased to be asked to take part, and to have the opportunity to engage with people with views that differ from ours in a respectful manner.

The transcript of the interview with Tanya Carter below sets out our views and concerns. More information about the resources that she mentions can be found in the Factsheets section of our website.

We would like to thank FLaG for giving us permission to publish this transcript.

(I = Interviewer, R = Respondent)

I:          Perhaps, as the first question, how and why did Safe Schools Alliance come to focus on safeguarding in schools?  So, how and why did you come to focus on that?

R:         We’ve come together from all over the country.  We got together because a lot of us were challenging safeguarding failures in our own schools.  [Personal background of interviewee deleted for anonymity purposes].  As a chair of governors, I had a lot of additional training on safer recruitment and how you ensure you get the right people in your organisation and how your organisation doesn’t get infiltrated.  So, I’ve always raised safeguarding concerns when I’ve seen them in my children’s own school.  Then through friends of friends, I’ve been put in contact with other people who are experiencing safeguarding concerns in their own schools because mutual friends thought I’d be able to help them.  And then I’ve met up with lots of other women across the country who were also encountering their safeguarding being undermined in their own school or their schools misrepresenting the Equality Act.  And once we all got together, we discovered that these weren’t like local issues that we were just experiencing in our own schools, these were national issues that affected everyone.  So, we came together, and we formed Safe Schools Alliance so that we could help parents all over the country challenge when their schools weren’t using the Equality Act correctly or when safeguarding was being undermined in their schools. 

I:          Do you think there are any limits or problems with adopting a safeguarding framework in this area?

R:         What do you mean by that?

I:          For example, what we were thinking about was, say, back in the 80s there was a strong conservative narrative that gay men were predators, for example, and that they were a risk to children’s safety.  Do you think there are any concerns around focusing on safety, that then exacerbates society’s views of particular groups or people or behaviours?

R:         Well, no, because safeguarding applies across the board.  That’s the point.  Everybody who comes into contact with a child needs to be subject to the same safeguarding frameworks.  Whatever protected characteristics you have, you are not exempt from those safeguarding frameworks.  And whenever a particular characteristic or group has been exempt from safeguarding historically then we’ve quite often seen horrific consequences of that. 

I:          What types of groups are you thinking of there?

R:         A variety of groups like, I don’t know what your understanding of safeguarding is or how you see it [overspeaking].

I:          That was going to be my next question!  It’s broader than I was thinking of it, because you were talking about safeguarding in terms of who you appoint to different schools and about making sure that they were the right type of people for safeguarding purposes, and that schools weren’t “infiltrated”.  I wasn’t sure what you meant by that.  So it’s about the educators themselves as well as the facilities and services within schools?

R:         Oh yes, absolutely.  Safeguarding is quite broad.  You start with your safer recruitment and that’s ensuring that the people that you have coming to work with your children are suitable people and that goes way beyond, like obviously you’d ensure you’d do your DBS checks and you check they haven’t got any convictions.  You check they haven’t previously been barred from working with children.  You ensure that you take references and that you actually speak to the people you take the references from.  You ensure you have got all your relevant information.  But it goes much broader than that. It goes onto values base interviewing, which came out of the Warner Report [1992] and the Bichard inquiry [2004] and so we look at: is this individual suitable to be working with children?  What motivates them to work with children?  You would question them about their understanding of safeguarding in child protection during the interview.  Because and—

I:          So, Safe Schools Alliance are also concerned with that aspect of safeguarding?

R:         Well, we are concerned with all aspects of safeguarding that schools do need, schools and any organisation that’s working with children, they need to have a good understanding of safeguarding and that means that everybody is attending child protection training and that they are regularly updated; that there is good induction processes to make sure that people understand the policies of the organisation they are working in.  That’s ensuring that every single policy you have in that school is checked against your safeguarding frameworks and is checked against your Equality Act and it’s just making sure that all the policies intersect correctly, all your inclusion, it’s not like a stand-alone for example CN [complex needs] children.  You have got to be looking at all your policies.  Every time the governors assess a policy, you have got to be looking at how does this impact on all your protected characteristics?  How does this policy intersect with our safeguarding policy?  Because, in a school, policies are not stand-alones, safeguarding is at the forefront of everything to do with schools. 

I:          In what regard does safeguarding intersect with and impact on sex and gender?  That’s really the focus of our project.  When you’re talking about safeguarding, what are the areas where it most likely impacts on issues around sex or gender?

R:         One of the biggest issues we have found with school policies is where they are saying that—obviously some things in schools, whilst it’s very important schools challenge gender stereotypes, some things will be separated on the basis of sex for reasons of safety or fairness or privacy and dignity.  An obvious one would be something like changing, obviously, we separate children there by sex and not gender identity.  When policies have come into schools and they haven’t been checked against the Equality Act or safeguarding policies, then we’ve ended up in situations where you are saying that you are separating children in changing rooms and overnight sleeping facilities on the basis of their gender identity and not their biological sex.  That ends up then with single-sex spaces becoming mixed-sex spaces.  Then you have got issues with obviously sex as a protected characteristic.  Girls are being stripped of their right to single-sex facilities because there may be a male in there because of his gender identity.  That is then indirect discrimination against the protected characteristics of sex.  And then, some girls, especially when you are looking at like Muslim girls or Orthodox Jewish girls, the protected characteristic of belief is coming in there as well.  But, really, it affects all girls because if they are being forced to accept males into their single-sex spaces, then we are looking at indirect discrimination under the Equality Act.  From a safeguarding point of view, you wouldn’t have male students and female students in the same accommodation overnight for reasons which are just obvious. 

I:          So, for you, it’s very much about the sex-based distinction being a biological one between females and males and not about a gender identity-based distinction?

R:         Yes.  Yes, because if you are separating on the grounds of gender identity, you’re really reinforcing stereotypes, and best practice in education is to challenge those gender stereotypes.  So, we are not saying dresses and pink and playing with dolls are for girls.  We are not saying trucks and blue and playing with planes are for boys.  We are saying that all the toys and all the educational subjects, they are all for all children.  You would only segregate on sex when it’s necessary to do so, like the obvious one in schools is sport.  Once you get past puberty then you are looking at, for reasons of safety and fairness, you would separate on the basis of sex.  And also, to a certain extent, privacy and dignity, because you do get complaints from teenage girls about comments and harassment from teenage boys, which is then exacerbated by them being in their PE uniform.   :          I am just wondering – to what extent somebody self-identifying and being known at that school to self-identify say, let’s take that example, as a girl, is that different, and they might have a male body, is there something different though about somebody who self-identifies and has done for some time and is accepted and called as such at school being in that particular space, compared to other males… you were talking about teenage boys.

R:         Well yes, they are still a male and for safeguarding purposes however a male identifies, we are still looking at the issue of the teenagers, if you leave male and female teenagers together overnight, there’s the risk of pregnancy, that that’s why we don’t do it.  That’s why we’ve never done it.  And however, in fact, going back to the sports thing, however they are identified that doesn’t change their physicality, and again there is again a fairness issue and a safety issue when you are getting into contact sports like rugby. 

I:          I understand that.  I was just thinking about things like school trips, separating people like you were saying, there’s that risk of pregnancy that has brought about the split between males and females.  There is quite a heteronormative fear isn’t it, I suppose.  Nobody is worried about, for example, gay people in those spaces.  So, it’s the risk of pregnancy rather than actual sexual contact that you are saying would be the safeguarding risk?

R:         Yes.  Certainly from my point of view.  [Personal example deleted for anonymity purposes].

I:          So, it’s not the sexual contact risk between males and females, it’s that pregnancy risk that, as a school governor and a school leader, you would be concerned about?

R:         I’d be concerned.  Definitely, I would, as a chair of governors, I certainly would not want an underage pregnancy occurring on my watch.  Have you read the NEU [National Education Union] and UK Feminista, they’ve produced a good report recently called, It’s Just Everywhere.  

I:          I haven’t read that one, but I know of Feminista’s work.

R:         They produced a report on the level of sexual harassment and abuse that girls are subject to in schools these days from their—

I:          I have seen that, yes, but I haven’t read it in any depth.  I know what you are referring to, yes.

R:         That would be another one of my concerns as a school governor.  Obviously, you need to be challenging sexism in schools.  You certainly need to be challenging girls being subjected to sexual harassment and abuse in schools.  That would be another risk with mixed-sex areas.

I:          I want to drill down in some of these afterwards. Just how, as a general question, do you think schools should approach gender and what should gender be taken to mean?  So, sex you are saying, should very much be about biology, physical biology, bodies.  How do you think schools should approach gender, if at all?

R:         I think schools should be approaching it by challenging gender stereotypes and there is an awful lot of work to be done there like the NEU report I just referred to that speaks a lot about the language.  It’s things like trying to ensure like engineering, have you got a 50/50 split in engineering.  Even those schools, these days, obviously don’t say things like: right, boys, you’re taking woodcraft, girls you are taking home economics.  In reality, how do these things work out?  How do we address it, so that we get to the point so it’s absolutely fine to be a boy who wants to take woodcraft, but it’s also absolutely fine to be a girl who wants to take woodcraft.  And likewise, absolutely fine to be a boy who wants to take dancing and cooking and it’s equally fine to be a girl who wants to take dancing and cooking.  It’s just like we’ve really got to drill down and challenge those stereotypes so that, unless we are in things where biology really does matter like… sex education is another one where we’ve seen some school policies where they’ve said that children can choose which talk to go to.  Obviously, that’s ridiculous.  If you are female, you need to be going to the period talk and if you’re male you need to be going to the talk about your voice breaking or you may be having wet dreams or unwanted erections.  These things have got to be separated on the basis of biology.  But where there is not a really necessary biological distinction like that, we would expect schools to be challenging that some things are for girls and some things are for boys.  We would be expecting them to challenge any sort of bullying that was being aimed at gender nonconforming students because quite often they are the students which grow up to be gay or lesbian.  A lot of the lesbian or bisexual members of Safe Schools Alliance they have all said to me that they were really quite gender nonconforming as children.  We really need to be getting to the point where that’s not an unusual thing.  That’s not something that is odd, or people are commenting about; that’s just how individuals are. 

I:          So for you, for schools tackling gender, the way you are describing it as tackling and breaking down gender stereotypes, you are approaching gender more as a social construct, as stereotypes and expectations of boys and girls, and breaking those down and also, as you say, the stereotypes and expectations around being straight or gay and—challenging gender to make for an equal playing field and inclusive playing field, socially.  And then sex as being very much this biological aspect?

R:         Yes. 

I:          I’ve got the next question here.  I think you have answered this.  Do you think sex can be separated from gender?

R:         This is I think where you need to be talking to someone who has the feminist analysis because—

I:          No, it’s fine, it’s the whole point!  We want to be talking to people on the ground involved in activism and local practice.  I can sit and read all my feminist books and all the different approaches, but this is very important for us, to understand how people understand the terms, how they use them. 

R:         Thinking about when I worked in early years [education], the children come to us at two and even at the age of two they’ve had a lot of socialisation before they get to us.  You don’t even know at that stage what is nature and what is nurture.  Certainly, once they were with us in Early Years, we had all the toys out and all the toys were for children.  Actually, we did find that the home corner with the play kitchen and the dressing up and the drawing table, they would predominantly be inhabited by girls whereas outside and the trikes and the cars was predominantly inhabited by boys.  But we did have boys who—we had a lovely little boy who used to dress up as Cinderella each day and then and all his friends were girls and we had a lovely little girl who dressed up as Spider-Man and all her friends were boys.  But all the children knew that their sex was what made them a girl or a boy.  There wasn’t any nastiness about what toys they played with.  We worked really hard to get to that point.  We were really proud of that.  And that was one of the things that got us an outstanding in the OFSTED, that you just, you obviously, you want them to have the language to name their body parts and to know they are a girl and a boy.  But there is not, there shouldn’t be a limitation to being a girl and a boy.  Obviously, you don’t want to lie to children, like you can’t be telling a little boy that he can grow up and give birth if he wants to, because he can’t.  And equally you can’t be telling a little girl that she’s going to grow up and be the strongest man in the world because she can’t.  But unless there is some biological reason to stop children, you have got to encourage all children to fulfil their potential and pursue their interests and talents.  There shouldn’t be any arbitrary social constraints on that. 

I:          Do you see a tension there?  Is there a problem between, on the one hand thinking about trying to undo gender and stereotypes and on the other hand, recognising people’s… not just their sex but their gender identity, you know, some children do have a gender identity that they would express as being different from or not matching their biological sex.  Is there a tension there, on the one hand trying to undo gender, but on the other hand trying to include and recognise that those that do feel differently?

R:         I really don’t think there should be.  I think all children should just be included and valued for what is special about them.  But it all seems to have got a bit wrong when we are looking at… we are looking at materials from charities that are saying they are to help gender-diverse children, but to me, they are reinforcing gender stereotypes by saying: well, if your child, if you’ve got a little boy who wants to dress up as Cinderella and his favourite colour is pink, maybe he’s not a little boy, maybe he’s really a little girl if he likes all that stuff.  To me, that’s incredibly regressive and just going against all the best practice from Early Years.  Of course, he’s perfectly entitled to dress up as Cinderella and make all his pictures pink.  That is great that that’s how he wants to express himself.  But it doesn’t mean that he’s a little girl and that we should set him on a course that ends up with him going on puberty blockers and being a lifelong medical patient.  We should just embrace that that’s his interests. 

I:          You think things have gone too far in that regard, that there are charities… what did you say, that there are charities or materials coming out, that do reinforce—

R:         I think some of the things, some of the things which are masquerading as progressive are actually very very regressive, because they are saying if a little boy likes pink or a Cinderella dress, maybe he’s really a girl.  Where, in my experience, a lot of those children just grow up to become gay men and actually some of them grow up to be very macho straight men.

I:          I haven’t seen those type of materials—what type of charities or materials are promoting that type of regressive stereotyping?

R:         I think it’s, [organisation’s] training is the one that gets raised with us quite often.  Have you seen that?  [Title of text].  

I:          No, I don’t know that.

R:         That is the one that gets raised with us quite a lot that people are concerned about and that I think—have you seen [campaign] on Twitter?  Or heard of [campaign]?  They are quite long-standing campaigns.  [One campaign] sort of campaigns against the fact that if you are a boy and you dress up as Snow White, you must be stopped from doing that, you must be forced to drop it.  [Another campaign] campaigns for letting children wear what they want.  [That campaign] has recently complained about some of the material they have seen from [organisation] where people are saying the reason they knew their son was really a girl was because of his interests and what he wanted to dress as and that they tried to make him be a proper boy and he wouldn’t and then they eventually got in contact with [organisation] and realised he was really a girl.  I just find that incredibly sad that the child wasn’t just allowed to pursue their own interests and then allowed to make whatever choices they wanted as an adult, be that being gay, straight, transgender, whatever.  This is our main focus.  

I:          Do you think if we got rid of the idea that people were given a legal sex at birth on their birth certificate that that could help that breaking down of gender stereotypes and expectations from the moment you have a boy or a girl?

R:         It’s difficult because we, I think we do need to keep recording sex because it’s not whether it’s legal sex or not, sex is an actual thing.  We need to be recording that for data purposes, because obviously, there is differences with males and females for medical purposes. 

I:          Does that need to be legal [sex/gender]?

R:         I am not really sure what you mean by legal sex?

I:          This is it you see, most of us don’t even think about the fact we have a legal sex, but the sex on your birth certificate becomes your legal sex for life unless you change it through going through the Gender Recognition Act and getting a Gender Recognition Certificate. So, for example, until very recently, you couldn’t have a same-sex marriage, and that would be determined by your birth certificate, whether you were legally same-sex or not. Or pensions law, it affects what type of pension you have, and your legal sex is what is put on your birth certificate. 

R:         I object to you being able to change your legal sex.  From what I know of the Gender Recognition Act, I actually quite object to that.  I am quite horrified by it because from reading through Hansard and what I’ve read about it, a lot of it I find that it enshrined horribly regressive and homophobic stereotypes in law and why shouldn’t people have been allowed to have a civil partnership or a marriage or whatever with somebody same-sex at that point.  I think your sex—unless obviously, a mistake is made like, I don’t even know what the least offensive thing to say here is, because some people object to ‘intersex’ and some people object to ‘disorders of sexual development’.  Obviously, if a mistake has been made when sex was recorded in those cases, there needs to be some sort of legislation to go back and change that, but I think that’s completely different to the GRA which I think needs to go and I think we need to be looking more at how do we protect adults who want to express themselves in a different way to what society has deemed ‘normal’, for want of a better word. Because, I don’t… they have not changed their sex. 

I:          If we got rid of sex on birth certificate, that could help those people as well. 

R:         But how would we then know for data purposes what sex people were?

I:          You could still collect the data.  You are quite right.  People would want to collect the data.  For example, in Tasmania they’ve started not putting sex on birth certificates, but they keep a medical record for planning purposes, healthwise and population planning purposes. It’s not actually on your certificate.

R:         What about when those children start school and the school needs to separate them by sex in those few occasions when it’s necessary for like safety, privacy, dignity?  We do need—

I:          Sorry.  So we still do need that legal documentation?  That’s important to you that we have some way of certifying what somebody is, what sex they are? That is important? 

R:         Absolutely.  And also, I think we need to know what sex people are to know how far we are progressing as a society, with challenging those gender stereotypes, for example, we still haven’t got 50/50 in parliament and we would need to know the actual sex of people to know at what point we actually achieve that. 

I:          Data, you are quite right, a lot of people raise data collection as a big issue.  But we do collect data on people’s race and ethnicity for example, don’t we, but we don’t have a legal piece of paper saying what ethnicity we are.  We could still collect the figures.  What is it special about sex that we need a piece of paper and state certification of who you are?

R:         Because sex is binary.  You are male or you are female.  Whereas, where you’re looking at things like race, there is not that definite distinction there and lots of people are mixed race and it’s different how people think of themselves.  It’s not a definite binary that you can tell from chromosomes.  I suppose you can a bit when people are doing these DNA testings and you get like, you are 78% Scandinavian or whatever.  That’s very new out.  Whereas sex from a chromosome test, it’s very definitely binary.

I:          So, it’s the truth of your sex so to speak?  It’s a factual truth?

R:         Yeah. We need to know that so that we can monitor how we are getting on with challenging gender stereotypes.  Women achieving equality; are people still being discriminated against on the basis of their sexual orientation?

I:          What would be your long-term ambitions and your utopia or your vision for gender?

R:         I think my long-term vision for gender would be that it just wasn’t a thing, that we went back to sex, and that, as a society, we accepted that, apart from those occasions where you are limited by your biology, you shouldn’t be limited by your sex.  It’s so difficult to pick apart with things like advertising and, even before children are born, they are starting to be groomed into what society deems they should be because of their sex. 

I:          That is why I was asking you about can you really disentangle sex and gender because as you say, it sounds neater than it is.  But society, as you say, already starts gendering a baby, people wanting to know what sex the baby is, buying all the colours for their nursery or whatever to match. 

R:         It’s a very very long-term project.  I think we were getting somewhere in schools with a lot of schools were doing very good work in challenging gender stereotypes.  I think now we are regressing again now, we’ve somehow got that mixed up with transgender children, and starting to say that children who don’t fit society’s norms and putting them in a special category and saying, they are transgender, I think that’s really been a step backwards.  I think we need to look at, yeah.

I:          So, you don’t see that—or could you see that as part of the breaking down of gender in that gender is sort of diversifying in terms of people’s experiences/ identities?  Could that be seen as a positive development? 

R:         I don’t think it is because I’ve spoken to, I think I’ve spoken to too many de-transitioners or listened to too many of them and that just makes me feel so sad what was done to them, what they felt about themselves at the time they started to realise they were same-sex attracted or they just didn’t have the interests that the other girls had.  And it’s so difficult to know whether those interests the other girls have, are they their interests or were they just groomed into them being their interests?  Like one of the de-transitioned children, what really got to me was, she said, she was always told by the women in her family when she was a child that it was fine that she was quite tomboyish, had short hair and everything.  But she said she didn’t have any adult role models like that, even though they were telling her it was fine.  All the women in her family had been effectively groomed into women in our society with long hair and make-up and nails.  She didn’t have the role models and so she transitioned.  She has now grown up a bit and realised actually she was just a lesbian.  But she’s had a double mastectomy and her womb removed.  She’s early 20s.  It’s so sad.  I felt quite guilty at that point because I go in for the hair and make-up and the nails but I never told my daughters they have to.   Another case was a teenager, who was asked by a classmate which one out of her and her girlfriend was going to transition when they were older so that they could have children.  This child thought that you actually could have a sex change and become a man and then biologically father a child. [Several details in the examples given in this paragraph changed for anonymity purposes].   And it’s just so sad the misinformation that we’ve allowed to get out there to children.  It needs an awful lot of unpicking and I think it’s probably, it’s not going to be a quick fix.  It’s going to take us a generation to unpick this. 

I:          Do you think the law could play a role in unpicking things? How do you think your long-term vision could be achieved eventually or progressed? 

R:         I think the law needs to be very clear about the differences between sex and gender because I don’t think it is at the moment.  I think if you go back to Hansard with the Gender Recognition Act, it’s very jumbled, there is—sex and gender is being really muddled up.  Whereas to me, sex is just biology.  That is what you are born with.  Gender is not a term I was ever particularly familiar prior to speaking to feminists, who have sort of said that it’s a social construct and it’s what we use to keep women subordinated by encouraging little girls to play with their toy kitchen and we sort of groom them from birth with their toy kitchen and their dolls and their pink.  Even though, officially, we don’t do that anymore.  We do groom them from birth to be home-makers, basically.  I think we need to be very clear in law that you cannot discriminate against somebody for their gender presentation.  We have got to be clear that perhaps you can’t have your women’s dress code at work and your man’s dress code at work. It’s got to be the same for everybody.  Obviously, dress codes are needed because if you are public facing you can’t just say—

I:          There have to be certain standards of grooming?

R:         There are standards, yes.

I:          What about school uniforms?  I am just thinking laterally here.  Do you think having gender-neutral school uniforms would be a good idea?

R:         I think that—that’s a very contentious issue.  Quite often when schools declare gender-neutral uniforms then they just go: right, trousers for all.   And a lot of girls actually want to wear the skirt and the tights.  I think we have got to get to the point where if an item is suitable for one sex, it should really be suitable for both sexes.  But then again, there are some difficult areas there.  Obviously, girls and boys do have different bodies and if you are a big-busted schoolgirl is your ‘man shirt’ and your tie really appropriate.  There is going to have to be some sort of different styling to account for different bodies.  But, as much as possible, if an item is suitable for one sex in the school, it’s suitable for the other.  You can’t really—

I:          So you’d rather, for example, a list of items that might include skirts, for example, but anyone could wear them?   Rather than saying all girls now have to wear trousers.  Would you see that as them having to conform to the male norms of trousers?  For you, that wouldn’t be breaking down gender stereotypes, etc. it’s about having more freedom and choice, really? 

R:         Yes.  Unless there is a real reason for doing so, we should be letting children express themselves how they want.  It’s sort of about picking apart what are just things we do because they are a good idea, and there are reasons for us to continue doing things we’ve always done, and what are things we do because we’ve always done, but they may not necessarily be a good idea.

I:          I was going to follow up on that, when you said, it’s about letting children express themselves the way they want.  Could that therefore include expressing oneself as transgender or non-binary or agender?

R:         Oh yes.  They are free to express themselves like that if they want but they can’t then compel their classmates to use their pronouns because then you are getting into the area of ‘my right to wave around my hands stops at your nose’.  So yes, they are free to call themselves whatever they like. 

I:          Is that about rights or respect, just respecting somebody wants to be called a particular thing or particular pronoun? 

R:         At the point that you’re saying children should be told off for not doing so, then it’s getting into a rights issue and it’s something we’ve seen disruptive students use against teachers, trying to compel teachers, teachers must use they as a pronoun and then complaining about it if they slip up.  There’s definitely issues with compelled speech and it impinging on people’s rights.  You can call yourself whatever you want; other people don’t have to respect that because they too have rights.  It’s a freedom of speech issue, which is really quite fundamental to a democracy.  But yes, obviously, also teaching children to all respect each other is something we need to do.  But we are often finding with like the ‘be kind’ because girls and boys are still socialised differently, girls seem to have ‘be kind’ used against them to always give way to the boys and that is not fair. 

I:          That’s problematic.  So, when you were saying, you think it would be better to have clearer law around sex and gender, and that you can’t discriminate for example on grounds of gender presentation, where would be the next step from that?  You would like the law clearer.  What would you like the law to do: define what sex and gender are? 

R:         Yes.

I:          Would that extend to like single-sex spaces you were talking about earlier and things like toilets and school trips?  There is flexibility in the interpretation at the moment.  Some people in interviews have said to me that flexibility is good because it allows people to respond to different cases and contexts.  Whereas some people would much rather the law be totally clear and not allow for flexibility.  For you, what would be the best move there?  What would be a good move?

R:         The law totally needs to be clear.  Because if the law is not clear, and not clear to the average person on the street, that’s really quite discriminatory, and it’s why we have seen all this confusion, like people have interpreted the law to their aims.  Whereas, actually if you go back to the Equality Act, even though it’s a very weighty document, it is quite clear that there are single-sex exceptions.   But people i.e. [organisation] have been telling, have been interpreting the law to businesses in a way that makes them too scared to use the single-sex exceptions, whereas it should be made quite clear that these should be applied to places like refuges and prisons, and to a lesser extent changing rooms, but certainly your women’s refuges and your prisons would be where there is very clear law needed because they are just full of incredibly vulnerable women that society has failed to safeguard when they are children and now we are still failing to safeguard them now they’re adults.  It’s just horrendous. 

I:          Going back to schools, would you like it to be very clear there that single-sex should mean single-sex in terms of biology and bodies?

R:         Absolutely, yes.  The law needs to be very clear with regard to schools.  I actually think the law is clear with regards to schools, but schools are being given misinformation which seems to be circulating everywhere, and we think a lot of the misinformation is coming from places like [organisations].  But we don’t know where they got their misinformation from. 

I:          I’ve seen that you have brought, or you have supported, a judicial review of [a local authority’s schools guidance schools on transgender inclusion].  Can I ask you about what you think about judicial review as a strategy to test things, challenge things, change them?  Do you think it’s a good strategy and why? 

R:         It’s the strategy we are using because when I was a chair of governors, I was always told that my number one priority was to ensure that all the children were safe at all times and my number two priority was to ensure the school didn’t get sued.  We’ve repeatedly pointed out to people why their policies undermine safeguarding and why they are not in keeping with the existing Equality Act law and our existing safeguarding frameworks.  And we’ve been pointing that out for a long time.  Some schools and local authorities have listened to us and withdrawn their toolkits.  Others like [local authority], the women from [county] repeatedly raised how these policies weren’t keeping children safe for well over a year, and they were ignored which gave us no choice other than to go down the legal route.  We would like that everyone that is involved with children or producing materials for children or writing policies that affect children, we would like all those people to be prioritising safeguarding.  If they are not prepared to do that, because that’s the right thing to do, then we will have to go down the legal route because that’s all we are left with if people aren’t going to put the safety of children [first].

I:          I saw that [local authority] had withdrawn their policy, so the judicial review now can’t go ahead, presumably, if the policy is withdrawn.  What were you hoping to achieve through bringing the judicial review?

R:         Once we have won a judicial review then that establishes case law and then that will affect anyone—like the EHRC did you see their leaked guidance?  Once we’ve established case law then that affects the whole country.  Well, it will set a precedent in England and I think, Wales.  It wouldn’t set a precedent in Scotland, but it would be persuasive.  Once we’ve won a case and established some case law, then that helps to protect children countrywide  because then we’ve made it very clear what the law is, that sex does matter, and then that helps to keep every child in the country safe. 

I:          So, it is about having a case to clarify the law, to set a precedent? [R: Yes] But obviously it didn’t get to court and their particular policy has been withdrawn, but does that help you in any other way in your strategy?

R:         Since [local authority] have now withdrawn the toolkit, a lot of other councils have been written to by parents and their attention has been drawn to this case and they have said: look, this was found at High Court to be arguably unlawful.  They have now withdrawn the toolkit rather than going to judicial review.  So, lots of other counties have now withdrawn their toolkits.  Some counties still haven’t.  So, we are continuing to write to them and take advice on what to do about them.

I:          So, it’s had an impact in terms of [bringing] public attention and schools’ and local authorities’ attention to the matter?  

R: Yes. 

I:          It has had some success in that regard, even though you haven’t got to court to clarify the law?  

R:         Yes.  

I:          Now you talked about those type of transgender toolkits not keeping children safe. Is that back to your point that you are allowing male bodies in female spaces and female bodies in male spaces?  Is that the crux of the safety issue?

R:         That was one of the safety issues and another big concern was that they were saying that if a child disclosed that they transgender or thought they were transgender or had been looking at stuff to do with transgender online, if they disclosed that to a member of staff, that member of staff was just to keep it to themselves and not discuss it with the child’s parents. That just undermines any established safeguarding, where in schools, if a child makes a disclosure to any adult in a school, the correct procedure is that adult then notes that information, they share it with the designated safeguarding officer and then the designated safeguarding officer would put it together with all other information they have on that child and make a decision what to do.  Normally, the safeguarding lead’s first port of call would be to discuss this with the child’s parents, so that all the adults involved in the child’s life can work together to get the best outcome for that child.  If, for some reason, the safeguarding lead thought that it would be dangerous for the child to disclose their transgender status to their parents, that would be a really quite serious situation if the safeguarding lead is making a judgement call that that child’s parents wouldn’t keep it safe or that sharing the information could endanger them.  At that point, they’d have to really have grounds for thinking that and if they thought that they would need to be involving other agencies, because we’ve had several parents get in contract with us who have discovered that their child had perhaps for a term or two been referred to by a different name or by different pronouns in school and that the school hadn’t got in touch with the parents to share this, to discuss how all the adults in their life could work together to ensure the best outcomes and support that child and that’s just an absolutely horrendous unpicking of safeguarding because that’s… communication is the basis of safeguarding and that comes up in a lot of serious case reviews, that when things have gone wrong for a child, it’s been a communication breakdown whereas really, you need all the adults involved in a child’s life talking… 

I:          So, safeguarding is not so much about safety, it’s more about working out what is the best interests of the child, collaborating with all those involved.  When you are talking about safeguarding, it’s not, is it really about their safety?  For example, if a child told a teacher they thought they were gay, would that also be a safeguarding issue that would need to be disclosed to parents?

R:         Not so much the fact they were gay, it would be, if anything around that, if they’d said anything around the fact of them being gay, that would be something they would need to disclose.  If there was anything about the disclosure they’d made that caused the teacher to be concerned for their child’s welfare. 

I:          If somebody said they thought they might be transgender, it’s a safety issue around whether they might be bullied by other children or harmed by other children? 

R:         It’s not them saying they think they are transgender, it would be connected issues like there maybe safeguarding concerns connected to what have they been looking at online that causes them to think that.  Have there been—a lot of the girls thinking they are boys, we’ve come across stories that they originally thought they were lesbian, then due to homophobic bullying, they then decided actually they were boys.  So, that would be a safeguarding issue if they had been subjected—anything that impacts on the best outcomes for a child would be a safeguarding issue.  It doesn’t matter– no child should be removed from the normal safeguarding frameworks, regardless of whether they are straight, gay, transgender, whatever. 

I:          No, I was just thinking—it was more what type of issues would have to be passed onto a parent when the child discloses something. 

R:         It would be anything that made you concerned for that child’s welfare, like if that child, if the child said they were gay and were worried about coming out and that they were worried about telling their parents, the best thing to do would be to encourage the child to talk to their parents about it, because most parents would be supportive of their child in that situation.  But if there is a situation where you think that the parents wouldn’t be supportive of that, or the child would actually be in danger if they told their parents that, we are really getting into other—

I:          A different area.  It’s really safeguarding you were saying, it’s a concern for the child’s welfare.  I was just trying to tease out the difference between safeguarding in terms of somebody being safe and acting in terms of their welfare and their best interests, which would be a broader aim.

R:         Yes.  Safeguarding is a very broad term.  We are basically looking at getting that child to adulthood as healthy and as reaching their potential as is possible to do.  It’s about getting that child to adulthood, in reaching their full potential.  They are going to require all adults to work together and when you are saying: well, if the child says they are transgender that automatically removes them from normal practices, that’s really really dangerous for that child.  We are very concerned about children being put in that position.

I:          Are there any other areas?  Because I’m aware that I’ve probably had an hour of your time, already.

R:         That’s fine.

I:          Is that alright?  Are there any other areas where the law around sex or gender matters in schools or causes concerns in schools for you?

R:         I think the main thing is just with some schools, the single-sex schools, they should be allowed to stay single-sex.  We wouldn’t expect a single-sex girls’ school to admit a trans girl who is male.  They shouldn’t be expected to admit them.  Then, equally, if one of their girls transitions and says they are a trans boy in that situation, we would expect them to support that child and keep them in the school. 

I:          So that would really be on a case-by-case basis, or would you like proper rules in place?

R:         No.  We’d like proper rules.  We would categorically want single-sex girls, well, I think the law is there, if a single-sex girls’ school decided to exclude a girl for transitioning then I think that they’d already be on very shaky grounds, legally.  We want the government making things clear because there seems to be a big problem with lobby groups misrepresenting the law to schools. 

I:          It’s funny you should raise single-sex schools.  We’ve talked to a lot of single-sex schools about how they deal with gender and sex issues broadly, but also about transitioning children.  It seems to be, as you were saying, a lot of schools, if somebody wishes to transition during school, the school obviously supports them and is looking after their best interests by keeping them on at that school if they want to [stay on].  We were wondering how… if you didn’t have a legal sex status anymore, should single-sex schools be able to determine who is a particular sex for the single sex school.  It takes you down all sorts of interesting questions. 

R:         I think it would be—if you didn’t have sex recorded at birth, it would be very difficult to then have single-sex schools.  A lot of parents do—my children have all gone co-ed schools, but there are several women in [organisation] whose children have gone to single-sex girls’ schools by choice.  I think the difficulties there are… I believe their data shows that girls do better in single-sex education, but boys do better in co-ed.  So, we need to know legal sex so that we can sort of perhaps look into that a bit more and see, how do we get to the position where everybody is doing the best they possibly can in education.  It’s just about, it’s making sure that you have got the best outcomes for every single individual child, but also you have got to look at girls as a group.  Are we having the best outcomes we can for them from education?  And also boys as a group, are we having—and also getting into things like emerging sexualities in teens.  Do people who start to have, who start to realise they are gay or lesbian or bisexual in their teens, do they have a better experience than their straight peers?  Do they have a worse experience or is it the same?  We really need to know sex to look at that.

I:          You think having legal sex helps you ‘know sex’ as it were having that—

R:         Yeah, absolutely.  We need to be recording sex at birth and unless there is a medical reason for doing so, I really don’t think that anyone’s legal sex should ever be changed.  But that’s not to say that people should be required to act a certain way because of their sex. 

I:          Can I ask one last question?  We have covered all sort of ground.  What do you think the value is, if any, of a project like this one, in exploring future reform options around sex and gender, which aren’t currently on the table? [Pause] Do you think there is a value, and what is the value, of having a project where we are not talking about something that’s currently on the table in terms of law reform, but something speculative and future orientated?

R:         I don’t know.  I think it’s always good for somebody to collect a range of viewpoints because obviously the discourse has become quite toxic if you look at something like Twitter, it’s really become quite nasty.  So, I think it’s really good to have any sort of project that is going to take a wide range of views and see where different people actually are coming from as opposed to where other people are alleging they are coming from. 

I:          Yes, as a project we’ve had that problem as well!  We have been alleged to be everything from one extreme to the other and, as you say, the Twitter wars don’t help at all, do they? 

R:         No.  It’s really nice to meet you, actually.  It’s been an interesting conversation. 

I:          Likewise, thank you.  I really appreciate it.  [Discussed next steps of project and other possible people to speak with].  

END OF INTERVIEW – 66 mins

Future of Legal Gender Interview, 2nd October 2020