Statement on recently published guidance for transgender pupils

Safe Schools Alliance does not welcome the “Guidance for maintained schools and academies in England on provision for transgender pupils” which has been published by the Association of School and College Leaders, Chartered College of Teaching, Confederation of School Trusts (CST), Institute of School Business Leadership, National Association of Head Teachers and National Governance Association. 

The purpose of the document is unclear and we question why it has been published ahead of the forthcoming Department for Education guidance for schools. Whilst we recognise the guidance supports the need for single sex facilities, it does not take a safeguarding first approach throughout. We believe this guidance to be biased and politically motivated and whilst it references the interim Cass Review it does not fully support the recommendations.  

We are unable to endorse this document and would like to see it withdrawn pending official guidance from the DfE and EHRC which we hope will take a safeguarding first approach.  We would welcome working further with the DfE and the EHRC to discuss our concerns with this guidance in more detail. Our full statement is included below. We will be publishing a fuller review in due course. 

Our Full Statement

We do not welcome this guidance and have the following concerns:  

1. The purpose is unclear. The DfE is working with the EHRC to produce workable guidance for all schools which is due to be published this Autumn, so it is unclear why this has been written now by this group of organisations; particularly as it states a disclaimer that schools should not rely on it for a legal opinion.  We question the motivations of the publishers and the usefulness of the document. Additionally, there is no information about how it has been funded, who the authors are or what the review process has been. The lack of transparency, given the claims it makes, is concerning.  

2. The guidance states that “The focus is on schools’ duties towards pupils”.  A school’s first duty towards its pupils is to safeguard them all. If schools had always followed a ‘safeguarding first’ approach they would have deployed professional curiosity when first confronted with children adopting opposite sex and other identities. A widespread failure to use a holistic approach and deal with this phenomenon under safeguarding, while considering what else was going on in children’s lives, particularly online, has led to a national medical and safeguarding scandal. This is not acknowledged or addressed in this guidance.  

3. The document is biased. It enshrines the concept of a “transgender child” throughout the document; this is contrary to advice given in the interim Cass Review. The opening sentence “The rights and protection of transgender people are currently contested and rapidly developing areas of law.” displays the bias of the authors and their lack of understanding of the need to approach this issue via a safeguarding framework.  Transgender adults have the same rights and protections as the rest of the population.  The document does not recognise how ‘transgender rights’ have been weaponised to undermine the safeguarding of children in schools and in wider society. We are disturbed at this anti-safeguarding bias from a group which includes governors and school leaders. This lack of in-depth understanding of safeguarding is simply unacceptable from people in these positions of responsibility. 

4. We are pleased to see that, unlike other toolkits, this guidance does acknowledge that parents and any other professionals involved in a child’s life should be involved in decision making. This is best practice – “child-specific judgments to be made by schools in dialogue with pupils, parents, and professional advisors”. It should however be noted that even with the agreement of all, there can never be a situation where individual children are opted out of safeguarding, i.e. single sex spaces; nor can decisions be made that impinge upon the privacy, dignity or safety of other pupils. We are pleased to see that the guidance does acknowledge this point:  “Schools should be mindful that, in attempting to keep one group of pupils safe, and to respect their privacy and dignity, they need to avoid compromising the safety, privacy and dignity of other pupils.”  We have encountered cases where the decision for sharing mixed sex spaces overnight has been put onto children, including those under 16. It needs to be made explicitly clear to schools that this abdication of their duty of care is completely unacceptable and in the event of harm such as underage pregnancy occurring, the school would be liable here.  

5. We are concerned about the uncritical use of contested political language in this document – there is no universally agreed definition of ‘trans’ or a ‘spectrum of trans identities”. We are alarmed to see the conflation of ‘gender non-conforming’ children with gender distressed children. Schools should be always challenging gender stereotypes. There is no intrinsic reason for any child who is ‘gender non-conforming’ to be distressed. Very few children will be gender conforming in all areas. Schools should value and encourage all children as individuals. No child should be singled out because an adult has deemed they are ‘gender non-conforming’; this is the very opposite of challenging gender stereotypes. The guidance says “When considering transgender children and young people schools may find it helpful to consider using the language of the Cass Review which refers to children or young people ‘experiencing gender-related distress’, ‘gender-questioning’ or ‘needing support around their gender.” The authors of the guidance should themselves have taken this advice; instead the rest of the document uses political language throughout.  

6. This guidance leaves schools open to legal challenges by not being explicitly clear about who is responsible for children in the school’s care.  Even if a school believes that external resources have been endorsed by the local authority or the DfE, it will be the school who bears responsibility, not the DfE, if harm comes to a child as a result of policies or resources used. Ultimately headteachers and governing bodies are responsible for the safety of pupils in academies. In maintained schools the LA will bear the liability.  

Whilst we welcome the commitment in the guidance to the integrity of single sex spaces we are not prepared to compromise on child safeguarding. Children’s safety and wellbeing should not be used as a political football. There is no room for negotiation or for a give and take approach. 

That is why we are unable to endorse this document. We very much hope the DfE and EHRC will do much better and focus their guidance on safeguarding. We would welcome working further with the DfE and the EHRC to discuss our concerns with this guidance in more detail, and will be publishing a fuller review in due course.