In December the DfE published the long-awaited Gender Questioning Children Guidance.
Clearly this is a controversial and complex area of education policy which, from a legal perspective, intersects multiple areas of law. When taking any action, schools and colleges must consider around how this guidance sits alongside the Equality Act, data protection law, and existing regulatory and statutory duties such as relating to safeguarding. It is important to stress that this is a draft, non-statutory document that, at this stage, is out for consultation and is not for use by schools and colleges until it is finalised.
From our review of the guidance, we believe there are elements within this draft guidance that could give rise to legal risks for schools which are not addressed expressly in the document as it stands. We would, therefore, urge caution in its use, and would advise against adopting any new policies, procedures or practices relating to gender questioning children (note: the guidance explicitly does not use the terms “transgender” or “trans” children) based on this draft guidance without taking independent legal advice in this remaining period pending it finalisation.
In addition, it is anticipated that there will be an extensive response to the consultation and any final version of the guidance may well evolve and change. Given the complexities of this issue, and the length of time it has taken to produce the consultation document, we also believe that this final guidance is unlikely to be published in the near future. (An overview of the guidance’s five key points can be read here, the consultation is due to end on 12 March 2024.)
The government’s Gender Questioning Guidance can be read here; we will be publishing further comment as the DfE’s process for finalising it unfolds. If you need legal advice on this topic, please get in touch with your usual Stone King contact or email Helen Tucker.