The Attorney General, Suella Braverman MP, gave a speech on Wednesday 10th August 2022 to the think-tank Policy Exchange. It was a wide ranging speech which covered human rights law in the round and three specific areas. One of these areas was the teaching of ‘gender ideology’ in schools. A transcript of this segment of her speech can be found below.
What is important to note is that this speech validates the view taken by OFFRED that there are schools breaking the law, and in some cases harming children.
The challenge is particularly acute in schools, and for those whose professional responsibilities are to child welfare.
Obviously, school staff are highly motivated to do their best for children. To do this, they need to understand their legal obligations. They need to understand the evidence about how best to support gender questioning children. And they need to know how to make a best interests decision for each and every child under their care.
The problem is that many schools and teachers believe, incorrectly, that they are under an absolute legal obligation to treat children who are gender questioning according to their preference in all ways and in all respects, from preferred pronouns to use of facilities and competing in sports. All this is sometimes taking place without informing parents or without taking into account the impact on other children. Anyone who questions such an approach is accused of transphobia. In my view this approach is not supported by the law.
For the sake of clarity I’m going to set out my view on the legal position under the Equality Act
Now, by way of preliminary notes:
Under 18s are unable to obtain a Gender Recognition Certificate and schools will generally be dealing with children who’s sex for the purposes of the Equality Act is that registered at birth. And, as used by Dr Hilary Cass in her interim report, I will use the terms transboy to mean a biological female who identifies as a male and transgirl to mean a biological male who identifies as a female. I use both as shorthand to include all those claiming protection under the characteristic of gender reassignment as referred to in the Equality Act.
So, taking the issues in turn:
Yes, it is lawful for a single sex school to refuse to admit a child of the opposite biological sex who identifies as transgender. This can be a blanket policy to maintain the school as single sex. This does not constitute unlawful direct discrimination on grounds of sex under Schedule 11, nor does it constitute unlawful indirect discrimination on grounds of gender reassignment. This is clearly a proportionate means of achieving a legitimate aim.
Yes, it is lawful for a mixed school to refuse to allow a biologically and legally male child who identifies as a transgirl from using the girls’ toilets. This does not constitute direct sex discrimination and it is not unlawful indirect discrimination on grounds of gender reassignment. Indeed, if the school did allow a transgirl to use the girls’ toilets this might be unlawful indirect discrimination against the female children. Further, in law, there is a duty to provide separate single-sex toilets, a breach of which would be unlawful under the School Premises (England) Regulations 2012 and the Education (Independent School Standards) Regulations 2014.
Similarly, yes, it is lawful for a mixed school to refuse a biologically and legally male child who identifies as a transgirl from using a single sex girls’ dormitory. This is neither direct sex discrimination or unlawful indirect discrimination on grounds of gender reassignment. Sufficient comparable accommodation must be provided to both boys and girls, protecting girls privacy, dignity and safety, are eminently legitimate aims.
Yes, it can be lawful for schools to refuse to use the preferred opposite sex pronouns of a child.
This does not necessarily constitute direct discrimination on grounds of sex, particularly if unsupported by the child’s parents or unsupported by medical advice, nor is it necessarily indirect discrimination on grounds of gender reassignment where a school has considered and can justify the approach.
As set out in the interim Cass report this is social transitioning, and it is not a neutral act, it is a serious intervention and should only be done upon the advice of an independent medical practitioner.
Furthermore, schools and teachers who socially transition a child without the knowledge or consent of parents or without medical advice increase their exposure to a negligence claim for a breach of duty of care to that child.
Yes, it can be lawful for a school to refuse to allow a biologically male child who identifies as a transgirl to wear a girl’s uniform. This will be a significant part of social transition and the inherent risks of that could present an ample legitimate aim, therefore this does not necessarily constitute unlawful direct sex discrimination, nor is it likely to constitute unlawful indirect discrimination on grounds of gender reassignment. Court of Appeal authority permits different dress codes for male and female employees, and no rational decision to my mind can be made for school uniforms
Yes, it is lawful for a school to refuse a biologically and legally male child who identifies as a transgirl from participating in girls’ single-sex sporting activities. This does not constitute unlawful direct sex discrimination nor is it unlawful indirect discrimination on grounds of gender reassignment This single-sex exception is based on the average performance of male and female participants.
And, lastly, yes, parents have a right under the Freedom of Information Act 2002 to request access to teaching materials used in their children’s state-funded schools. They could also make an internal complaint followed by referral to the Department for Education, and ultimately by a judicial review; but parents do have the right to know what is being taught to their children. It is, therefore, wrong for schools to suggest that they have legal obligations which mean that they must address children by their preferred pronouns, names, or admit them to opposite-sex toilets, sports teams, or dormitories.
A right not to suffer discrimination on grounds of gender reassignment is not the same thing as a right of access to facilities provided for the opposite sex. The exceptions in Schedules 3 and 11 create a mechanism whose sole purpose is to ensure that even though there is a general prohibition of sex discrimination, schools are legally permitted to take a single sex approach. This is supported by the case law. Now Parliament could not have plausibly intended for the specific exceptions to be subject to collateral challenge by way of complaints of indirect discrimination by other protected groups such as those with reassigned gender. That would be to risk the Equality Act giving with one hand and promptly taking away with the other.Schools should consider each request for social transition on its specific circumstances, and individually, and any decision to accept and reinforce a child’s declared transgender status should only be taken after all safeguarding processes have been followed, medical advice obtained, and a full risk assessment conducted, including taking into account the impact on other children.
I hope that understanding the law will free up schools to act in each and every child’s best interests rather than being driven by a generic misunderstanding of legal duties.
This legal view is supported by the emerging evidence. As the interim Cass report points out, and I am quoting:
“it is important to acknowledge that it is not a neutral act to socially transition a child and there are different views on the benefits versus the harms and better information is needed about the outcomes.”
Given, and I quote:
“the lack of agreement and in many instances the lack of open discussion among clinicians” there are very real dangers of schools socially transitioning children in this way.
Since the interim Cass report schools must be sensitive to the fact that gender distress may be a response to a range of developmental, social and psychological factors; that something else may be going on.
The fact that there has been an enormous increase in the number of cases, in addition to a complete change in the case mix of those with gender distress within the last decade – from predominantly boys presenting in early childhood to teenage girls with no prior history.
The fact that approximately one-third have autism or other types of neurodiversity, and there is overrepresentation of looked after children, should illustrate the complexity of what schools are dealing with.
Schools have a duty of care in relation to the health, safety and welfare of their children; and they risk breaching this duty when they encourage and facilitate a child’s social transition as a blanket policy or take the decision to do so without medical advice. Given the emerging nature of the evidence and the fact that even clinical professionals find it challenging to know whether transition is the right path for the child, it is not reasonable or fair for teachers to have to make this onerous decision alone. It is a decision that can have lifelong and profound consequences for the child. That’s particularly so when the child is harmed as a consequence; especially if social transition were to lead subsequently to binding or medical or surgical procedures, and even more so if done without the knowledge or consent of the child’s parents.
To emphasise again, before going ahead with social transition, schools should get the best multidisciplinary team around the table including clinical professionals and parents. In children’s healthcare the legal presumption is that parents act in the best interests of their children until and unless there are strong grounds to suggest otherwise.
There is no other situation where a school would make a significant life-changing decision about a child without involving the parents; these children should not be treated any differently.
I understand that my comments may make those experiencing gender distress anxious, particularly when they may be waiting to access support from the NHS. More needs to be done to ensure the children do receive that support in a timely fashion, and more generally that being gender-nonconforming is accepted and supported. Stereotypes of what it means to be a boy or a girl can be challenged; but it’s important that we take a prudent approach particularly as we await the full Cass Report.
Interpretations that support unthinking and absolute approaches to gender are rooted in new political ideologies outside the scope or intention of the Equality Act. They undermine other rights which do merit protection under the Act, including protecting those who attempt to question the dogma.
These ideologies propagate the view that a person’s biological sex is quite distinct from their gender. These theories are premised on an assumption that regardless of biological sex, children must be assisted to decide their gender. These highly contested outlooks presuppose that gender is subjective, and binary approaches to sex are exclusionary. To assert that a person’s biological sex is objective and cannot be changed is now a risk to someone’s employment status. Freedom of thought, belief and conscience, are often set aside in this debate.
These ideas are pervading the public sector and are being taught in some schools without any democratic scrutiny or consideration of the consequences. It is a highly politicised agenda promoted under the guise of diversity, tolerance and inclusion. That is despite the Department for Education guidance published in February this year which makes clear that where partisan political views are covered, schools must ensure that these are presented in the appropriate context which supports a balanced presentation of opposing views.
It’s important to be clear what are scientifically tested and establish facts, and what are questionable beliefs. In my view, a primary school where they are teaching eight or nine year old pupils (year 4 children) keywords such as transgender, pansexual, asexual, gender expression, intersex, gender fluid, gender dysphoria, question your queer, would be falling foul of government guidance. Nor is it age-appropriate to teach 4-year olds that people can change sex or gender. In line with Department for Education guidance, primary schools do not need to set exercises relating to children’s self-identified gender. In these instances, schools, who may be well-intentioned but misinformed, are breaching their duty of impartiality and indoctrinating children into a one-sided and controversial views of gender. Age-appropriateness is the critical factor. The younger the child and the more simplified the explanation, the greater the risks that schools won’t achieve the right balance.
Further, no child should be made to be fear punishment or disadvantage for questioning what they are being taught, or refusing to adopt a preferred pronoun for a gender questioning child, or complaining about a gender-questioning child using their toilets or changing rooms, or refusing to take part in activities promoted by Stonewall or other such organisations.
The right to freedom of belief, thought, conscience, and speech must be protected. True diversity and equality are at risk when, as a society we divide groups, we divide everyone into separate groups, and then silence the views which may challenge those groups. This is not what democracy is about, and it is not what the law requires. Of course, this is a complex and emerging area of law; but I hope to provide legal clarity to schools and parents today.
Suella Braverman MP at Policy Exchange
The full speech can be found on YouTube: