Carys Moseley comments on the impact of different guidance for schools on transgender issues.
Guidance for schools across England, Wales and Scotland forcing girls’ schools to admit male-to-female transgender pupils will not be published. It was due to be published by the Equality and Human Rights Commission, having been delayed since March 2018. At the same time similar guidance by LGBT Youth Scotland is also being challenged in Scotland.
The Telegraph had seen a draft of the guidelines in August 2019. They were meant to deal with issues such as preferred pronouns, anti-bullying policies and use of changing rooms. There was more to this than merely manipulation of words. The demand was made for schools to install gender-neutral toilets and changing rooms. Pupils were to be allowed to use toilets and changing rooms according to their self-identified gender.
Boys who said they were female would no longer be barred from sports lessons for girls. Teachers who refused to call transgender pupils by their opposite-sex names were to be told they might be breaking the law. This recalls the case of Joshua Sutcliffe, the teacher disciplined for calling a girl a ‘girl’. It also recalls the Mermaids training for teachers in a Church of England primary school caught on tape. Nigel and Sally Rowe were accused of ‘transphobic behaviour’ by their children’s headteacher when they questioned the school’s permission for a six-year old boy to identify as a girl.
‘Lack of definitive case law’
Vigilance is still needed in this area. For the Equality and Human Rights Commission made a strange statement on the matter:
“Considering the lack of definitive case law, it has become clear that publishing our guidance may not provide schools with the clarity we hoped.
“This would not be in the best interests of young people, including trans pupils. We have therefore decided not to publish our guidance.”
This is an extraordinary statement, for it suggests the Commission is waiting for people to bring legal cases before it provides guidance on sex in law. Sex is a protected characteristic under the Equality Act 2010.
Gender reassignment in schools
The Commission is using ‘gender reassignment in schools’ as the protected characteristic for pupils who say they are transgendered, as this is in the Equality Act. However, what is being ignored here is that under the Gender Recognition Act, gender reassignment surgery is only allowed for those aged 18 and over who can show they have been living in their chosen gender for two years.
There is no indication in the press reports that the Equality and Human Rights Commission has considered that this should draw a line under how far these guidelines should go. For several years now transgender groups have been stretching the meaning of ‘gender reassignment in schools’ to mean gender self-identification for under-16s.
A postcode lottery of guidance
In the absence of clarity, some local authorities along with the Crown Prosecution Service have published their own guidance. However, two teenage girls hit back by bringing legal cases against the CPS and Oxfordshire County Council. They argued that their right to privacy was being undermined. This has sent out a powerful message, but has not settled the matter.
Gender-critical groups such as Transgender Trend, which more recently collaborated with Sex Matters, have published their own guidance for schools. Whilst this is welcome, this cannot in and of itself settle matters. There is a postcode lottery of guidance now, and also therefore a postcode lottery for privacy rights, fairness in sports and safeguarding. This is unacceptable.
Should schools be led by cultural trends?
The Telegraph reports that some single-sex schools are dealing with all this by treating self-identified transgender pupils on an individual basis. In other words, if a pupil says they are transgendered, the schools will accept this. It isn’t clear whether this means they go out of their way to change toilet and changing room signs.
The Campaign for Common Sense was quoted as saying “it is not always clear what the right thing to do is,” and that the issues are “very sensitive” and “very important.” In light of this it is vital to continue questioning this social trend.
The need to tackle the root problems
Education has got to the point where it appears ‘sensible’ to allow schools to give into transgender ideology ‘on a case-by-case basis’. This is individualism gone mad. The entire history of how the transgender movement wormed its way into schools is down to parents making sentimental individualist claims for their own children.
Research on gender problems in children and adolescence shows that there are numerous serious mental and behavioural problems in the background. Twenty years ago, the Tavistock found that a very high proportion of children referred to it came from broken homes or were in the care system. The collective unwillingness to investigate why children even say they really belong to the opposite sex points to a deeper cultural malaise. It has become acceptable since the 1990s to treat some children as if their feeling at odds with their bodies should be an unquestionable given. Parents who convey their disappointment with a child being born into one sex are a major, if hidden, part of the problem, but no longer get challenged as they used to by mental health professionals. This amounts to a societal refusal to uphold standards of good parenting.
Scottish mother challenges gender secretiveness
All this comes as a Scottish mother has taken legal advice about schools’ transgender guidance. In 2017, LGBT Youth Scotland published guidance saying that schools can support a child’s desire to change gender without having to tell their parents. The mother had discovered that her daughter was being treated as a boy without her knowledge. Aidan O’Neill QC gave a legal opinion that this was breaking the law. The Times reports that 32 Scottish local authorities are using the LGBTYS guidance.
O’Neill told the Times that the Scottish Government was breaking the law in promoting this guidance. The guidance is under review after the Christian Institute has warned against its adoption.
Children don’t have an absolute veto over parents
In an important statement, O’Neill went on to say that LGBTYS had misinterpreted the law on the child’s right to privacy. He argued that Article 8 of the European Convention on Human Rights establishes a child’s right to privacy “within their family and home, not from their family and home.” This is very important as the transgender movement has been encouraging schools to adopt policies that undermine children’s own families.
Parental rights are at stake here. Parents have the legal right to know from their children’s schools about their development and wellbeing. Most importantly, O’Neill concluded by saying that children cannot be the final authority on what schools can tell their parents.
“No child has a universal or absolute veto on what can and cannot responsibly be discussed with or revealed to their parents by their school.”
Where does authority lie?
The approach of the Equality and Human Rights Commission, to shelve guidelines whilst remaining silent as schools engage in hyper-individualism, is passive. Worse, it seems to be waiting for more legal cases to be brought. This suggests it has no intention of tackling the issues itself. O’Neill’s legal opinion, on the other hand, confronts the way in which government has helped schools undermine parental authority. In so doing, they have overstepped the mark.
What is the point of having an Equality and Human Rights Commission if it refuses to defend sex as a characteristic for the very age group whose sexual distinctiveness needs most protecting? As it is a public body linked to the government and created by it, the question of where authority lies comes up here. The Scottish case raises a crucial related question. If the government has more rights than parents over a child’s development, the question arises as to why have families at all. Do they simply exist to fulfil the policies of whichever government happens to be in power? These questions will not simply be solved by more litigation or a proliferation of more clever guidelines. The retreat from the Christian principles that have animated the making of the law must be addressed.