Long-awaited draft guidance for schools has now been published for consultation. The guidance is called “Gender questioning children” and is available via the following link: https://consult.education.gov.uk/equalities-political-impartiality-anti-bullying-team/gender-questioning-children-proposed-guidance/
The 12-week consultation period closes at 11:59pm on 12 March 2024 so there is time to respond with your comments in the Spring Term. It is for the Government to decide if any changes are required once the consultation closes.
The guidance in many instances provides that it is for the individual school to come to its own decision on a specific case. It sets out “five general principles” as follows:
- “Schools and colleges have statutory duties to safeguard and promote the welfare of all children.
- Schools and colleges should be respectful and tolerant places where bullying is never tolerated.
- Parents should not be excluded from decisions taken by a school or college relating to requests for a child to ‘socially transition’.
- Schools and colleges have specific legal duties that are framed by a child’s biological sex.
- There is no general duty to allow a child to ‘social transition’”.
It is important to note that the guidance will be non-statutory, which means that schools will not be legally obliged to follow it.
Whatever form the guidance takes when the final version is published, any decisions taken on individual cases must be based on a school’s legal obligations. This will include, for example, the Equality Act 2010 and a school’s safeguarding obligations as set out in the statutory guidance, ‘Keeping Children Safe in Education’.
From a practical point of view, schools should ensure that all staff know how to internally refer any related issues which arise in school, for example, if a child speaks to their class teacher about their feelings relating to gender, in the same way that safeguarding concerns should always be referred to the Designated Safeguarding Lead (DSL). This will ensure that the right support is in place for all involved and that decisions are not made unilaterally.
It may also be helpful for schools to establish an internal committee to confidentially discuss individual cases to help ensure that a lawful, measured and holistic approach is taken and that decisions are made in the best interests of the pupils involved. While the constitution of any such group will depend on the size of the school, we would suggest that it should include the DSL and the SENCO, as well as other senior staff with pastoral responsibilities, for example, the relevant Head of Year.
Any issues discussed and decisions made on individual cases by the school should be carefully documented, along with the rationale. Cases will need to be kept under review as the circumstances will inevitably change.
We will continue to monitor the position relating to the draft guidance during and after the consultation and will provide further updates as and when there are any key developments.
For further information, please contact our School Support Service team on 0345 070 7437 or schoolsupport@wslaw.co.uk