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Schools sector sounds the alarm over transgender guidance

Sector bodies have sounded the alarm in their responses to a consultation on the government’s controversial transgender guidance, which closed this week.

Concerns included that guidance breaks the law, does not align with safeguarding duties, conflicts with the responsibility on leaders to act in a child’s best interests and does not help staff deal with practical issues.

Here’s our round up of everything you need to know.

Schools need legal backing

As revealed by Schools Week, the government’s own lawyers said schools faced a “high risk” of successful legal challenges if they followed several elements of the guidance.

The NASUWT teachers’ union, in its submission, said trust in the “legality of the draft guidance will remain low” until ministers can “provide more convincing evidence that it reflects the best possible understanding of the legal position”.

As the proposed guidance is non-statutory, NASUWT added it “does not provide protection” from legal cases against those “who believe that their statutory or regulatory rights have been breached”.

NASUWT, the Association of School and College Leaders (ASCL) and the school leaders’ union NAHT, also said the guidance does not fully align with equalities legislation and the Keeping Children Safe in Education safeguarding duties that schools must follow.

Julie McCulloch, ASCL’s director of policy, said if government “cannot provide assurance that schools and colleges will not be leaving themselves open to legal challenge by following this guidance, then the government itself must commit to taking on any legal challenges that arise against schools.”

In child’s best interests?

Leora Cruddas, chief executive of the Confederation of School Trusts, said the guidance covered a “sensitive area, and it is important that we get it right so that our young people are safe and well-supported”.

But the body is in talks with the Department for Education about “the relationship of this draft guidance with statutory guidance, most crucially on safeguarding.

“We feel it is important that a child-centred approach based on individual circumstances is put at the centre of decision-making.”

NASUWT added the need for schools to act in the best interest of children “underpins some of the most important legal obligations place on them, particularly those related to child protection and safeguarding” – but said the guidance conflicts with those.

The NAHT, which published a summary of its response, added it was a “significant oversight for consideration of the mental health and well-being of children and young people, not to be one of the overarching principles”.

ASCL, in its submission, also highlighted “confusion and concern” around how the guidance applies to youngsters of different ages.

For instance, the union pointed out guidance said requests to transition from primary school pupils “should be treated with greater caution”, but then adds such children “should not have different pronouns” used – which implies “this key aspect of social transitioning should never be permitted”.

Doesn’t help with practical issues

Dr Patrick Roach, general secretary of NASUWT, added the guidance “fails to provide effective support on practical issues that schools and colleges may face, including on working with children who have already transitioned with the support of their families”.

Both ASCL and NASUWT highlighted that the guidance does not provide support for children who have already transitioned.

Dr Patrick Roach

Concerns were also raised about the proposed notion of “watchful waiting” in cases where schools may wish to accommodate “degrees of social transition”.

NASUWT said this would “appear to be of little practical assistance in supporting decision-making”.

“Specifically, the guidance does not set out what schools and colleges should watch for, nor does it help them to determine a reasonable duration within which they should watch and wait in particular cases.”

ASCL also highlighted the expectation put on schools to “make decisions before a pupil is permitted to socially transition which, in our view, require clinical expertise”.

Meanwhile on parents, NASUWT added: “The guidance is silent on the most effective ways of working with parents who are supportive of their child’s decisions.”

So what should happen now?

Unions agreed that having guidance was a helpful step.

But the NAHT said it wasessential” government “release any legal review they receive on the final guidance, and be explicit throughout the guidance, any areas which may, despite best efforts for clarity, remain legally ambiguous, and which may pose a legal risk to schools, in order that they can obtain their own legal advice”.

Roach said he wanted the draft guidance withdrawn and replaced with guidance that allowed schools to “act with confidence in what is a complex and sensitive aspect of their work”. Any revisions should be made after “full consultation” with the sector.

The NAHT added the final guidance must be “focused solely on clarifying operational and practical issues, such as access to single-sex spaces and admissions registers”, which is at the minute lacking.

Guidance should also be accompanied by training, support and resources for schools.

ASCL acknowledged the guidance was an “important and necessary piece of work on a sensitive, complex and contentious issue”.

But the union flagged “increasing concern” on a wider issue of “government by expectation”.

“Across a wide range of issues, the government now sets expectations for action by schools and colleges through non-statutory guidance, rather than clarifying and codifying the changes they wish to see in legislation.

“This is creating significant confusion, unhelpfully blurring the lines between what schools and colleges are legally required to do, and what the government of the day would simply like them to do… More clarity on this is required.”

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