Roger Kiska (Christian Legal Centre) analyses the government’s new draft guidance on how schools should treat gender questioning children
Since May 2017, when the Christian Legal Centre was first contacted by Nigel and Sally Rowe, until today, we have been at the forefront of the battle to protect young children and parental rights against the institutionalised promotion of gender identity ideology as fact. Local authorities, individual schools, the Church of England, LGBT and transgender campaigning organisations, and even reputable law firms and members of the Bar had been dictating what they wanted the law to say, rather than what it actually says.
As one of the lone voices warning that children under 18 cannot be legally identified as transgender, we welcome many of the large steps forward in the government’s draft guidance on gender questioning children.
What’s right about the guidance
Many of the points in the guidance are a useful pushback against the harm gender identity ideology has done to our children and young people.
The guidance will undoubtedly lead to an outcry by transgender activists and supporters, who seem unconcerned about the exponential growth of children being referred to gender identity clinics because of what is happening in our schools, and the mental, physical and developmental harm that has caused. But the government is correct in the draft guidance, where it does not use the term ‘transgender’ to describe children under the age of 18, because legally a child cannot be transgender.
It is also notable that the Department for Education has used the term ‘gender identity ideology’, rather than ‘gender identity belief’; the latter being the phrase adopted by some of the United Kingdom’s courts and tribunals. The recognition that the content of this philosophical belief amounts to an ideology and should not be taken as fact, and that it even does harm by creating unhelpful stereotypes, is as clear an indication as any that this type of education has no place in our schools.
The draft guidance, applying the law as it is (as opposed to what campaigners have aspired it to be), has provided much needed clarity on any number of issues. So much so that, had this guidance been in place since 2017, and properly applied, it is unlikely that we would have had any of the legal battles that the Christian Legal Centre has supported over the years in this area.
Joshua Sutcliffe, for example, was struck off as a teacher by the Teaching Regulation Agency, for misgendering a student who identified as male by saying “well done girls” after the student, together with other biological females, answered a maths question correctly. Section 6.3 of the draft guidance addresses this head on: “On these rare occasions, no teacher or pupil should be compelled to use these preferred pronouns and it should not prevent teachers from referring to children collectively as ‘girls’ or ‘boys,’ even in the presence of a child that has been allowed to change their pronouns.” That same section states that in primary schools, children should never be addressed by different pronouns than those which accord with their biological sex.
In another high profile case, a school teacher we identified as “Hannah”, was sacked for raising safeguarding concerns about the transgender affirming policies the school used where she was teaching. Almost point for point, the guidance speaks to the concerns Hannah raised about social transitioning, same-sex spaces and sharing a dormitory with children of a different biological sex.
The overarching principles
The draft guidance provides five general principles that schools should follow when a gender confused child comes to their attention:
1. Schools and colleges have statutory duties to safeguard and promote the welfare of all children.
The draft guidance builds on the findings of the Cass Review, articulating that social transitioning is not a neutral act, and can in fact have harmful consequences. The DfE goes further, stating that special care should be taken in relation to primary aged pupils because they are more vulnerable and less able to articulate their feelings. Schools should not impose gender identity ideology on students of any age who are gender questioning. Requests for social transitioning should be treated with caution. Allowing a child to use different pronouns should be done only in exceptional circumstances, and even then, only when balancing the best interests of the child in question against the rights of the other students.
2. Schools and colleges should be respectful and tolerant places where bullying is never tolerated.
This principle speaks for itself and recognises that there are cases where children are genuinely distressed, sometimes to a clinical level, and that they should be treated sensitively. The draft guidance nevertheless warns schools to be on the lookout for gender confusion caused by outside factors such as peers or social media.
3. Parents should not be excluded from decisions taken by a school or college relating to requests for a child to ‘socially transition’.
This is another welcome area, which if introduced sooner, would have prevented a number of families the Christian Legal Centre has supported, from going through the pain of having their children socially transitioned behind their backs. Parents have been told on numerous occasions by schools, and even local authorities, that they had a legal obligation not to tell parents about their child’s social transitioning. I am of the perspective that any such campaigning organisation which has provided such advice or training to schools should be banned from giving advice to schools on gender issues. Any solicitor’s firm that has provided that advice should be sanctioned by their regulator.
4. Schools and colleges have specific legal duties that are framed by a child’s biological sex.
Among these legal obligations are:
- To use the correct legal name and biological sex of every child in the school register;
- To respect same-sex spaces, such as toileting (and even hand washing areas) and changing facilities by reserving them for people of the biological sex for whom they were intended;
- To keep sports sex segregated where biological sex can have an impact on safety and fairness;
- To not allow a child of a one biological sex to share sleeping arrangements with a child(ren) of a different biological sex.
5. There is no general duty to allow a child to ‘social transition’.
The draft guidance really goes further than saying that there in no general duty to a allow a child to ‘socially transition.’ The guidance is clear that the presumption should be against allowing a child to socially transition except in exceptional circumstances. Words matter to our courts, and exceptional really should mean exceptional, or a school might find themselves on the wrong end of a lawsuit.
The Department of Education welcomes schools to treat children in accordance with their ethos, meaning Christian schools can provide pastoral care to gender questioning children in accordance with their Christian ethos and Biblical teaching. The guidance notes that staff, pupils and parents who hold religious objections to gender identity ideology have legitimate objections that must be respected. This is in sharp contrast to the position taken by the Diocese of Portsmouth and the primary school attended by Nigel and Sally Rowe’s children, which told the Rowes that their inability to view two young male boys as girls made them transphobic.
A change in the law is really needed
While there is much in the new draft guidance that is helpful, elements of it do not go far enough. One primary concern is that medical evidence is not required to allow a child to socially transition; a measure that was called for in the Rowes’ case and had been suggested by Suella Braverman when she was attorney general. Nor does the guidance prohibit social transitioning outright, even in primary schools. While the guidance prohibits pronoun changes for primary aged children, and strongly cautions against allowing them to socially transition, it does leave the door ajar for such transitioning to take place. Moreover, as the guidance in non-statutory, it uses the phrase schools “should” far more than it does schools “must”.
Part of the issue with the draft guidance, is that what is really needed is a change in the law. S. 7 of the Equality Act 2010, which defines gender reassignment, is unacceptably vague and has been abused by activists to get their agendas across for far too long in English schools. When agenda driven education activists feel empowered to define gender reassignment as anything they wish it to mean, then they feel equally empowered to assign legal obligations to schools stemming from non-discrimination law.
While the draft guidance does much to put an end to this, it leaves the door ajar enough that we should remain concerned about the wellbeing of gender questioning children.
Conclusion
For years, Christian Legal Centre has been arguing that gender identity is not synonymous with gender reassignment and that children under the age of 18 cannot be legally recognised as transgender. The Department’s draft guidance supporting this interpretation of the law is clear.
Beyond needing a change in the law, three other matters should also be addressed. The first relates to the DfE’s RSE guidance, which recommends the teaching of gender identity to secondary school aged pupils. The Government’s labelling of the beliefs underpinning gender identity belief as ideology should, in my view, toll the death knell to this type of education. There is a conflict in guidance, if on the one hand, the DfE is calling it ideology, and on the other hand, in its RSE guidance, is recommending that it be taught.
The second issue that arises from today’s draft guidance, is just how wrong the Church of England has been in its pastoral approach to gender confused children. The government’s draft guidance should serve as an urgent call to the CoE to disavow Valuing All God’s Children and overhaul its approach to fall in line with that of the government. It is indeed a sad state of affairs when a secular authority provides a more Christian approach to gender confused children than does a spiritual authority.
The third relates to the issue of ‘conversion therapy’. The draft guidance states that schools should not proactively initiate action towards a child’s social transition. It calls on schools to allow for a watchful waiting period to monitor the persistence of the gender incongruence and its effect on the child’s well-being and behaviour. It requires parents be included in any decisions that are made. And it forbids schools from presenting contested areas of gender identity ideology as fact. The reality is that there are schools, as well as local authorities, who lead with the presumption that social transitioning provides a benefit to a gender questioning child. These individuals and institutions assign to gender identity ideology a faith that is sometimes religious in its zealousness. While the issue of this type of rigid purposeful application of gender identity ideology to children is not addressed in the guidance, it really can be looked upon as a form of ‘conversion therapy’ towards a transgender identity. Reinforcement by moral signalling, psychological coaching and assuring a child that their transition is a positive thing can have long term effects, not the least of which is to take these children down a road towards puberty suppression and harmful medical intervention. While the Christian Legal Centre is opposed to any new ‘conversion therapy’ legislation, if ‘conversion therapy’ advocates are to be intellectually honest, they too should be shouting down a transgender affirming approach to social transitioning children.
