What does the Government’s Gender Questioning Guidance mean for schools and colleges?

The non-statutory draft guidance (currently under consultation) was published on Tuesday 19 December, and contains 5 key principles. Our note on the draft guidance can be read here. The wording below is taken directly from the overarching principles in the guidance:

1. Schools and colleges have statutory duties to safeguard and promote the welfare of all children. They should consider how best to fulfil that duty towards the child who is making such a request and their peers, ensuring that any agreed course of action is in all of their best interests. This may or may not be the same as a child’s wishes. Knowing a child’s sex is critical to schools’ and colleges’ safeguarding duties.

2. Schools and colleges should be respectful and tolerant places where bullying is never tolerated. Staff and children should treat each other with compassion and consideration, in accordance with the ethos of the school or college. 

3. Parents should not be excluded from decisions taken by a school or college relating to requests for a child to ‘socially transition.’ Where a child requests action from a school or college in relation to any degree of social transition, schools and colleges should engage parents as a matter of priority, and encourage the child to speak to their parents, other than in the exceptionally rare circumstances where involving parents would constitute a significant risk of harm to the child. 

4. Schools and colleges have specific legal duties that are framed by a child’s biological sex. While legislation exists that allows adults to go through a process to change their legal sex, children’s legal sex is always the same as their biological sex. 

5. There is no general duty to allow a child to ‘social transition.’ The Cass Review’s interim report is clear that social transition is not a neutral act, and that better information is needed about the outcomes for children who undertake degrees of social transition. If a school or college decides to accommodate a request, a cautious approach should be taken that complies with legal duties. Some forms of social transition will not be compatible with schools’ and colleges’ statutory responsibilities.

The draft guidance is subject to consultation.

If you need any legal advice on this topic in the meantime please get in touch with your usual Stone King contact or email us here.