20 September 2023

Guidance on trans children could end up a legislative dog’s breakfast


Back to school for this administration after the long summer break never felt so hard. While the Prime Minister is grappling with crumbling classrooms, it is the identity politics around the children within them which is arguably a greater headache. 

Sources inside Downing street say that the much-delayed guidance on school policy for gender questioning children is imminent. Clarity on this emotive and contested issue has been sought by school leaders for years while the Department for Education has dithered and delayed over one substantive issue.

What is the problem that is grinding the gears of any progress? It is a conundrum that may have a profound impact on distressed and confused children who have been ‘socially transitioned’ by schools. The new guidance will likely make clear that these kids cannot now use facilities, wear uniforms or participate in sports designed for the opposite sex. However, some legal advice the Government is relying on suggests that it would be unlawful to also forbid a child from using cross sex pronouns or being addressed by teachers and pupils by them. 

Here is an example of what that dog’s breakfast could mean. George, a year seven male student, wishes to be known as Georgina and identifies as female. George must be indulged in his preference but will not be able to dress as a girl, use girls’ toilets or participate in girls’ sports teams. If the structure of sex rights is repaired in schools by this guidance but the language to articulate it is left out, we are potentially left with a mess even greater than the current position. George might have been at a school where previously all of those doors to identity expression were open. What is the impact on him now?

I understand that the difficulty is caused by legal advice that to deny a boy or girl the ability to use other pronouns to describe themselves, and by extension require others to collude in this new identity, would engage the Equality Act. The Act, never conceived to deal with the current explosion of gender questioning children, lists ‘gender reassignment’ as a protected characteristic – in other words  – given special protection in law from discrimination. It specifically protects those who have ‘proposed, started or completed a process to change his or her sex’. The Act allows public authorities to lawfully discriminate against those holding protected characteristics in limited and defined circumstances. This opt out will allow Sunak to be firm when his guidance removes doubt about the protection of female spaces, uniform and teams in schools.

But it is unclear why this prohibition cannot be further extended to the use of language too. Are we really saying that a primary school child, who wouldn’t be allowed to cross a road without supervision, is competent to propose his or her transition to the opposite sex sometime in the future? Do officials really believe that is what the law intended when drafted? Whatever emerges will be subject to judicial review in any case. The Prime Minister must know this. As surely as he must know that reining in schools who exclude parents from their child’s potentially life changing decisions will have huge public support, whatever the courts decide. 

The net effect of confused guidance for schools will be even more distress. We should never forget that the children concerned are uniquely vulnerable and must be treated with compassion. Many also have other conditions like depression, anorexia and autism, and schools do not have clinical expertise. Our legal framework for child safeguarding requires all public authorities to act ‘in the best interests of the child’. This concept has been twisted around by some to mean ‘whatever the child wants’ – including ‘social transitioning’, where a child’s often transitory identity preferences are accepted without question. It has been further weaponised by dire predictions of young people taking their own lives if the ‘rights’ they have accumulated – solely through the activism of adults and the indecision of the DfE – are interfered with. The stakes are very high. But that’s no excuse for further delay.

It may absolutely not be in the interests of a child to collude with beliefs or feelings on gender identity, however strongly felt, that can result in future irreversible and lifelong consequences, through medication and surgery. The testimony of young de-transitioners physically and psychologically scarred by a gender affirmation process often begun by well-meaning adults is harrowing and heart-breaking. The right decision is to maintain sex-based rights and boundaries in school and refer children in distress to clinicians who are qualified to help. That requires a fundamental improvement to our hopelessly threadbare child and adolescent mental health services.

There are plenty of studies that tell us most children grow out of gender dysphoria as they reach adolescence. We don’t know if or how social transitioning in schools affects this decision – whether it is a predictive or protective factor for or against the continuum towards cross sex hormones and invasive surgery. But surely we should act with an abundance of caution when it comes to precious children and stop schools acting far beyond their competence as educators. That is the challenge Mr Sunak must deal with. No one else can. Teachers and Prime Ministers alike should operate from the same starting point: No child is born in the ‘wrong’ body. 

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Professor Ian Acheson is Senior Advisor to the Counter Extremism Project.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.