Gender Questioning Children

On 19 December 2023 the Department for Education published draft guidance for schools and colleges in England in relation to gender questioning children and launched a 12 week consultation that closed on 12 March 2024. Schools and colleges are currently awaiting the outcome of the consultation process.

The guidance will apply to all schools and further education colleges and is non-statutory. Its focus is to provide practical advice to schools and colleges. The guidance is based on 5 general principles that schools and colleges can use to frame their decision making.

1. There are statutory duties to safeguard and promote the welfare of all children.
2. Schools and colleges should be respectful and tolerant and bullying is never tolerated.
3. Parents should not be excluded from the decisions taken by the school or college relating to requests for a child to socially transition.
4. Schools and colleges have specific legal duties framed by a child’s biological sex.
5. There is no general duty to allow a child to ‘social transition’.

The guidance addresses a range of issues and recognises that social transition is not a neutral act. It sets out that schools and colleges should take a cautious approach and make decisions with the involvement of parents.

Social transition is the process by which people change their names, their pronouns, their clothing, or use different facilities from those provided for their biological sex. It has been recognised that social transition can have formative effects on a child’s future development.

Key Points and Practical Guidance

1. Changing Names

Schools must record a child’s legal name and sex in the admissions register. The draft guidance sets out that schools may allow pupils to change their informal name if they believe it is in the best interests of the child to do so, having fully consulted with the child’s parents.

2. Pronouns

The draft guidance sets out that primary school children should not have different pronouns to their sex based pronouns used about them. For older children, schools can decline a request to change a child’s pronoun. Schools and colleges should only agree to a change of pronouns if they are confident that the benefit to the individual child out weighs t he impact on the school community. No teacher or pupil should be compelled to use preferred pronouns and can instead use the first name and avoid using pronouns.

3. Single-Sex Spaces including toilets and changing rooms

Schools must always protect single sex spaces including toilets, showers and changing rooms. The draft guidance sets out that children should use facilities designated for their biological sex unless it will cause them distress to do so. In this circumstance schools and colleges should provide alternative arrangements while ensuring that spaces remain single sex.

4. Boarding and Residential Accommodation

The draft guidance sets out no child should be allowed to share a room with a child of the opposite sex. If a gender questioning child does not wish to share a room with a child of the same sex alternative arrangements should be sought after considering Keeping Children Safe in Education guidance and the school’s safeguarding obligations. Any alternative arrangements sought should not compromise the gender questioning child’s safety, comfort, privacy, or dignity or that of other pupils.

5. Uniform

Schools and colleges are permitted to determine their own uniform policies and these should be enforced equally and fairly. The draft guidance sets out that a child who is gender questioning should be held to the same uniform standards of other children of their sex. Where uniform flexibility doesn’t already exist schools and colleges may look at how the gender questioning child could be accommodated and does not need to develop a new uniform policy. All staff should be made aware any variation in uniform requirement that have been agreed with parents for a particular pupil. The draft guidance acknowledges that children may want to adjust their uniform because they do not want to conform with expectations related to their sex and it is not to be assumed that any such child is on a path towards transition.

6. PE and Sport

Schools and colleges should encourage maximum participation and ensure that all children participate in sport safely. The draft guidance sets out that for all sport where physical difference between the sexes threatens the safety of children schools and colleges should adopt clear rules which mandate separate sex participation and there can be no exception to this. Where sports are deliberately mixed sex there should be no cause for concern. Where a child requests to participate in PE lessons or sporting competitions intended for the opposite biological sex, the draft guidance sets out that the school or college should consider:

• The age of the child making the request.
• How safe it would be to allow mixed sex participation.
• How fair it would be to allow mixed sex participation.

7. Single Sex Schools

Single sex schools can refuse to admit pupils of the other biological sex regardless of whether the child is questioning their gender. A single sex school cannot refuse to admit a child the same biological sex on the basis they are questioning their gender.

The Equality Act 2010 does not prevent single sex schools form admitting pupils of the opposite biological sex if the admission is exceptional, or the numbers are comparatively small and limited to particular classes or courses. Factors that are considered ‘exceptional’ will be a matter of fact and degree.

For further information on how we can support you, please contact a member of our Education team or, alternatively, submit an enquiry form.