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Our Response to the Draft Guidance


Below is Pop'n'Olly's submitted response to the Department for Education's draft guidance ‘Gender Questioning Children: Non-statutory guidance for schools and colleges in England’.


We wanted to provide our answers to help you think about your own. However, when completing the consultation yourself it is important you do not copy and paste our answers, but answer in your own manner.


 

13. Does this guidance provide practical advice to support schools and colleges to meet their duties effectively?


No


14. If you answered no, how could we improve deliverability placed on schools and colleges whilst still providing for schools to meet their duties?


Schools are legally bound to adhere to the Equality Act 2010, and must generally follow guidance, including the Government's Equality Act: Advice for Schools, and the Relationship and Sex Education (RSE) Guidance, unless there is a good reason to depart from it. However, concerns arise regarding the draft guidance, as it contradicts existing legislation and guidance, leading to confusion among educators.


A notable point of contention lies in the fifth general principle, asserting that there is no general duty to allow a child to 'socially transition.' This contradicts the protection granted by the Equality Act 2010 to children protected under the characteristic of gender reassignment (which includes social transition and makes no requirement for medical intervention) and is also at odds with various articles of the UNCRC (Articles 4, 8, 12, 13, 16, 19 & 29). Additionally, the draft guidance overlooks gender dysphoria and the requirement to consider and provide reasonable adjustments so far as gender dysphoria (and additional mental health conditions prevalent in LGBT+ children) is protected as a disability under the Equality Act 2010.


Based on the language adopted in the draft guidance, we have concerns that the policy is unduly motivated by political factors, rather than sound policy. The use of terms such as 'gender questioning' are misleading and biased, and (by using them in isolation) unhelpfully and misleadingly omits non-binary identities as well as children who may be secure in their trans or non-binary identity rather than just ‘questioning’. The document avoids the legally

recognised term 'gender reassignment' in favour of language commonly associated with anti-trans campaigns, including 'gender identity ideology'. Phrases such as 'gender distressed or confused' and 'gender incongruence' introduced by the draft guidance are outdated and not endorsed or commonly used by the LGBT+ community or medical professionals, potentially perpetuating misinformation. This discrepancy may not only confuse educators but also lead to potential illegal discrimination based on the draft guidance’s language.


Moreover, the obligation to “make parents aware” of trans children, as outlined in the draft guidance, contradicts many safeguarding principles. The draft guidance lacks a discussion on potential safeguarding risks specific to LGBTQ+ and gender questioning children and the due diligence required by teachers to ensure that outing a child won't cause harm. While the draft guidance states that informing parents might pose a significant risk of harm in a “very rare situation,” our experience suggests this risk is not “very rare,” potentially misleading and confusing teachers and causing an additional risk of harm to a child as a result of teachers being unaware of the risks in reality and how to assess them.


By the omission of any positive language regarding schools and parents successfully supporting trans and non-binary children, the draft guidance therefore assumes that all schools and parents will automatically be unsupportive of a gender questioning child, however this is largely not the case. Our first-hand experience has demonstrated that the majority of parents with transgender/non-binary children are highly supportive. Additionally, a survey indicates that 71% of British adults would support their child if they identified as transgender or non-binary (YouGov 2019). On the other hand, the survey indicates that a reasonable proportion of parents would be unsupportive of their trans child, and so we do not agree with the draft guidance’s statement that a risk of harm would be “very rare”.


Responding to Requests and Engaging parents


15. Does this section provide enough detail to help schools and colleges support children?


No


16. If you answered no, in which of the following areas do schools and colleges need further guidance to support a child?


The draft guidance’s lack of detail raises significant concerns, as it appears to depart from established safeguarding and confidentiality principles, potentially leading schools to act contrary to existing law. In particular, we are concerned about the recommendation for “watchful waiting,” which is a practice commonly associated with unsupportive attitudes towards trans individuals, and the requirement to “make parents aware,” risking a breach of

the safeguarding principles in the Keeping Children Safe in Education 2023 guidance. The draft guidance requires more detail on how to abide by safeguarding principles when working with trans, non-binary and gender-questioning children.


As an education company specialising in LGBT+ inclusion, our collaboration with thousands of supportive parents and schools has highlighted the need for comprehensive guidance to establish an effective education and learning environment for transgender and non-binary children - something this draft guidance fails to address.


The draft guidance implies that 'protected religious or other views' justify misgendering or deadnaming a trans pupil. Contrary to this, the Public Sector Equality Duty (“PSED”) under the Equality Act 2010 emphasises fostering good relations between those who share and those who do not share a relevant protected characteristic. In addition, the Ofsted guidance entitled ‘Inspecting teaching of the protected characteristics in schools’ and the DfE’s 2019

‘Guidance for independent schools’ on the Independent Schools Standards both reiterate that schools must not “advocate or otherwise encourage pupils not to respect other people on the basis of a protected characteristic.” Gender reassignment (including expressing a desire to socially transition) is a protected characteristic. The lack of detail on how to foster these good relations, and how to sensitively and fairly balance protected characteristics is

most unhelpful.


In essence, the draft guidance jeopardises well-established principles of safeguarding, confidentiality, and inclusivity within educational settings, offering no clarity for the majority of supportive parents and schools.


17. Think about the points outlined for schools and colleges to consider on pages 9-11 regarding making decisions about how to respond to requests for social transition. Are these points helpful?


No


18. If you answered no, what considerations would be more helpful for schools and colleges to consider?


When assessing how to support a child wishing to socially transition, it is imperative to prioritise the safety, mental health and well-being of the child. This involves a thorough consideration of the child's emotional state, ensuring that the school’s has due regard to eliminating discrimination under PSED, including the potential risk of discrimination and harm by other students, staff, and parents must be carefully weighed.


The confidence of the child in their identity must play a crucial role in this decision-making process. The child's statements, particularly if they are insistent, consistent, and persistent, should, in our view, be given significant weight. This consistency may indicate a genuine understanding of their gender identity, and it is essential to respect and validate their feelings. From our extensive experience working with primary-age children, we have

observed that transgender and non-binary children are very confident in understanding and expressing their gender. We have worked with many schools that actively support their transgender and non-binary pupils - an approach which has a significantly positive impact on well-being, enabling transgender and non-binary children to remain in school and continue their education uninterrupted.


Furthermore, assessing the impact on other children is essential, not only in fostering a welcoming environment but also in demonstrating support for other trans and gender-questioning children within the school community. Adhering to the principles of the PSED, schools should consider the broader implications on the school's atmosphere, including whether any decision eliminates discrimination, advances equality of opportunity, and fosters good relations.


Registration of Name and Sex


19. Does this section on page 12 provide enough detail for schools and colleges to ensure each child is recorded correctly and according to the Education Act 1996, Pupil Registration (England) Regulations 2006, GDPR and the Data Protection Act?


No


20. If you answered no, what further information should be included to help schools and colleges?


The draft guidance would benefit from clarifying the distinction between different records used to record children’s personal information, e.g. the difference between the attendance register and admissions register. This lack of clarity can potentially lead to schools misinterpreting the draft guidance, and potentially serving as a catalyst for bullying and unlawful discrimination, including through the harassment of LGBT+ children.


Notably, the requirement under the relevant Regulations relates to students' files rather than daily classroom registers, where standard practice in schools includes the use of alternate names for children (beyond trans children) without recording their sex.


Changing Names


21. Does this section on page 12 provide enough detail for schools and colleges to respond to a child’s requests to change their name?


No


22. If you answered no, in which of the following areas do schools and colleges need further guidance to respond to a child’s requests to

change their name?


A critical oversight exists regarding 'deadnaming' in the draft guidance. The draft guidance lacks clarity on how schools should address bullying and harassment in relation to gender-affirming name changes, and how schools can best foster good relations in the school community, particularly where there may be resistance from other students or staff.


Stonewall's School Report (2017) underscores the urgency of tackling self-harm and suicide attempts among trans youth. The clear positive effects of affirming a trans person's gender, including through name changes, noted in 'Thriving or Surviving?' (Horton, 2020), emphasise the need for supportive environments to reduce bullying and enhance well-being.


Additionally, the draft guidance's failure to align with common school practices, such as immediately accommodating name preferences, regardless of whether the change is requested because of gender identity or other reasons, highlights the necessity for consistent and fair treatment of all children.


The reported benefits of using correct names and pronouns, resulting in a 71% reduction in depression symptoms (Growing Up LGBT+, 2021), emphasise the draft guidance's impracticality in supporting trans and gender-questioning children.


The absence of reference to safeguarding and anti-bullying policies and guidance exposes a deficiency in how the draft guidance addresses crucial aspects of student well-being and protection.


A transgender young person we've worked with shared with us that “school was a vital safe space for me. Coming out to my teacher built confidence for coming out at home. By starting at school, I could ease my parents' worries, knowing if school accepted it, they could too.”


Pronouns


23. Does this section on page 13 provide enough detail for schools and colleges to respond to a child’s requests to change their pronouns?


No


24. If you answered no, in which of the following areas do schools and colleges need further guidance to respond to a child’s requests to change their pronouns?


The majority of students who are supported in using a change of pronouns at home, under the draft guidance, would be discouraged from attending school and participating in learning due to the distress caused by a lack of acknowledgment and respect for their identity within the school environment.


This comes from not only our personal and professional experience but also from the reported comments from a number of trans and non-binary students and their parents in the 2024 article by Ben Hunte (available at https://www.vice.com/en/article/z3mk9y/transgender-children-transphobia-england-schools).


The draft guidance on primary school students lacks a convincing rationale for treating them differently, irrespective of age. Refusing a pronoun change request, regardless of the student's age (protected under the Equality Act) could be interpreted as unlawful discrimination, and continued misgendering could be considered unlawful harassment (even if the school refuses to believe the child is, in fact, trans or non-binary). The assertion that there might be an ”impact on the community” justifying refusal to respect pronoun preferences lacks clarity and seems insufficient to override an individual's right to express their gender identity, particularly in light of a school’s obligations under the PSED.


Compelling teachers and pupils to respect the preferred pronouns of a trans, non-binary or gender-questioning student is essential to comply with the law and to protect the welfare and mental health of the student. The suggestion to avoid pronouns altogether, particularly when in relation to a specific student, is, we consider, inherently discriminatory and likely will foster an environment of exclusion.


While the draft guidance claims a commitment to not tolerating bullying, the drafting is confusing and unhelpful, potentially resulting in the condoning of bullying against trans children rather than providing the necessary protection and support they may need. This contradicts safeguarding aims outlined in safeguarding statutory guidance, and statistics on bullying and trans mental health, as quoted in our response to question 22, further underscore the importance of addressing these issues.


The refusal to use a child's preferred pronouns could constitute bullying, as outlined in the government's 'Preventing and Tackling Bullying' (2017) as it may “intentionally [hurt] another individual or group either physically or emotionally”, and is in direct contradiction to the objectives outlined in the draft guidance.


Single-Sex Spaces - Toilets, Changing Rooms and Showers and Boarding and Residential Accommodation


25. Does this section on pages 14 and 15 provide enough detail for schools and colleges to respond when a child who is questioning their gender makes a request to use facilities (e.g. toilets, changing rooms, showers and boarding and residential accommodation) designated for the opposite sex?


No


26. If you answered no, in which of the following areas do schools and colleges need further guidance?


Regarding our experience with primary schools the comments below will focus on toilets rather than other facilities as these are most relevant to primary environments. However, where the principle we outline are transferable to other facilities we encourage this to be inferred.


Using the toilet at school can be a stressful experience for transgender and non-binary children. Whichever toilet they use can result in interrogation, questioning or abuse by other students. This is however, in itself, not a sufficient reason for schools to not provide gender neutral alternatives.


Many supportive parents have shared with us that their transgender, non-binary or gender non-conforming children avoid drinking or eating at school in order to reduce their need to use the toilet. This can lead to a number of problems including dehydration, reduced focus and medical issues which, consequently, do not allow them equal access to education as these things will inevitably affect their ability to learn and retain information.


Many schools we have worked with have successfully operated facilities with gender-neutral options, for several years, available for any child that does not feel comfortable feeling gendered toilets. Indeed, disabled toilets are almost without exception gender-neutral.


The draft guidance lacks specific examples or clear explanations regarding the nature of 'appropriate alternative arrangements.' and how this related to bathroom and changing facilities. Furthermore, there is no clarification on how conflicts should be resolved, suggesting that the burden may not necessarily fall on the trans child to leave a space if other pupils express discomfort, the “safety, comfort, privacy or dignity” of the trans or non-binary

child can be protected. Schools would benefit from clear and supportive guidance that reflects the key considerations and factors schools should balance in making such decisions, and this guidance should be supported by evidence.


Further, the draft guidance is misleading in paragraph 6.41: there is no requirement that “separate toilets for boys and girls aged 8 years and over are to be provided.” Instead, Regulation 4 of the School Premises (England) Regulations 2012 states that schools must ensure that “separate toilet facilities for boys and girls aged 8 years or over are provided except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time.” Omitting this exception misleads schools into thinking that they must solely provide single-sex facilities, where in reality, they may provide gender-neutral facilities as a matter of course. The reference to this exception in the previous paragraph is not sufficient and needlessly creates inconsistencies which may mislead and confuse schools.


Importantly, trans and non-binary students should not be required to use disabled facilities as a substitution for gender-neutral alternative facilities. This would follow the approach established by the Government Equalities Office in its 2015 guidance for employers in relation to the recruitment and retention of transgender staff.


The draft guidance states “unless it will cause distress for them to do so. In these instances, schools and colleges should seek to find alternative arrangements” yet there is no explanation of how to assess the extent of the impact on the child.


The draft guidance overlooks gender dysphoria and the necessary adjustments mandated for schools under the protected characteristic of disability outlined in the Equality Act 2010.


27. Think about the circumstances provided in the guidance on pages 14 and 15, outlining the option for schools and colleges to find alternative facilities. Does the guidance provide enough support to help schools and colleges determine how to offer alternative facilities?


No - The draft guidance lacks specific examples or clear explanations regarding the nature of “appropriate alternative arrangements.” Furthermore, there is no clarification on how conflicts could be resolved amicably, suggesting that the burden may fall on the trans child to leave a space if other pupils express discomfort. This clearly does not foster good relations and will disproportionately harm trans and non-binary students.


Careful consideration of the mental well-being and learning accessibility for young trans individuals is essential when offering alternative arrangements. For instance, a student who feels unable to use facilities aligning with their gender identity may respond by avoiding school entirely. The draft guidance provides no practical support to schools in assisting them to support children by making school an inclusive environment.


Uniform


30. Does this section on page 16 provide enough detail for schools and colleges to respond to a gender-questioning child who makes a request in relation to uniform?


No


31. If you answered no, in which of the following areas do schools and colleges need further guidance to respond to a gender-questioning child, who makes a request in relation to uniform?


The draft guidance helpfully recognises that unisex uniforms offer significant flexibility. We've collaborated with numerous schools that adopt a gender-neutral uniform policy as common practice. Moreover, denying a pupil the choice to wear a uniform aligning with their gender identity has a detrimental impact on the child's mental well-being. Positive Futures Report, 2023, Growing Up LGBT+ Report, 2021).


40. Do you have any comments regarding the potential impact of the guidance on those who share a protected characteristic under the Equality Act 2010, whether negative or positive? How could any adverse impact be reduced and are there any other ways we could advance

equality of opportunity or foster good relations between those who share a protected characteristic and those who do not?


The draft guidance materially disadvantages those who share the protected characteristic of gender reassignment. There is no requirement to obtain a Gender Recognition Certificate, as the draft guidance misleadingly implies in section 4. There is also no requirement to undergo a medical process.


Neither the statute itself, nor the courts, have imposed an age limit on this protection. You cannot be ‘too young’ to identify as trans or non-binary, as this draft guidance states. Neither the statute itself, nor the courts, require the consent of a parent or guardian to identify as trans or non-binary, as this draft guidance seems to suggest. The draft guidance also implies that children may only “question” their gender, rather than define it for themselves, which is

not true in law, and is not true in fact.


The adverse impact of this draft guidance could be reduced by using the commonly accepted terminology in this field: “trans” and “non-binary” are not used in this draft guidance for reasons which are not clear. This creates the impression that the language has been used for political reasons, rather than to offer practical guidance to schools. Further, the draft guidance consistently implies that trans and non-binary students are a risk to their fellow

students. This is not borne out by evidence. Rather, it is the case that trans and non-binary students are almost always more often victims than perpetrators of bullying, harassment, abuse and violence than their cisgender peers. This guidance provides little to no practical guidance on how schools can support their trans and non-binary students, and how they can foster good relations between trans and non-binary and cisgender students. The focus of this draft guidance is more often on how to mitigate the perceived effect of a trans or non-binary child, rather than advancing that child’s equality

of opportunity.


General


41. Do you have any comments on the overall approach of the guidance?


Yes - The draft guidance presents a considerable challenge for teachers, as it consistently conflicts with both the Equality Act 2010, existing guidance by DfE

and Ofsted, and safeguarding principles, creating confusion in the implementation of this draft guidance.


Furthermore, the inappropriate and political terminology used throughout obscures legal obligations, adding an additional layer of complexity which

prevents the honest and fruitful dialogue necessary to support trans, non-binary and gender-questioning children.


Implementation of the draft guidance has the potential to inflict significant mental health harm on children. Further to this, many of the suggestions in the draft guidance will make it significantly harder for trans and non-binary students to successfully navigate school life, resulting in withdrawals from school and education altogether, evidence for which comes from our own experience with parents, trans children, educators and is also reflected in news

articles such as Ben Hunte’s article for Vice in 2024 reporting the experiences of 15 families (available at https://www.vice.com/en/article/z3mk9y/transgender-children-transphobia-england-schools). This is in no one’s interest and is certainly not allowing

trans children equal access to education.


The draft guidance creates inaccurate impressions regarding the likelihood of safeguarding risks and, among other things, the appropriateness of changing pronouns, contributing to further uncertainty and confusion for teachers.


It notably lacks provisions for situations where parents are supportive, which is often the case. Instead, it assumes that parents will overrule their child’s wishes. At the same time, it ignores the safeguarding risk posed by outing children to their parents, and fails to provide meaningful guidance to schools in assessing and responding to this risk.


Additionally, the draft guidance falls short in offering clear guidance on how to address bullying and discrimination by other students. We know that LGBT+ bullying is one of the most common forms of bullying found in UK schools (YouGov Poll 2019) and yet this draft guidance is silent on this issue. It is hard to see how the PSED has been considered in its drafting, particularly as there is no discussion on how the rights of different protected characteristics (such as LGBTQ+ children and those with gender-critical views) can be balanced, and so it is hard to understand where the aim of fostering good relations has been considered. Further, the need to advance the equality of opportunity of trans, non-binary and gender-questioning children also doesn’t appear to have been considered, and we would welcome guidance on how schools can support their trans students in this way.


Most concerning, perhaps, is the misguided implication that trans students may have a harmful impact on their peers, perpetuating misconceptions through the draft guidance’s choice of language. Trans, non-binary and gender-questioning students are just as important, worthy, and deserving of respect as cisgender children. The Cass Review, from which this draft guidance so selectively quotes, reiterates this in a letter to children. We recommend

the DfE take the same approach.


Misinterpretation and selective quoting of the Cass Review (which is supportive of gender-affirming care and states in its opening letter that “I think more services are needed for you”) and a claim of insufficient evidence on the “impact of changes on children” (despite abundant evidence, both quantitative and qualitative, demonstrating the significantly positive impact of affirming the gender identities of young people) raises further concerns. Evidence for the above comes from multiple reports of LGBT+ young people’s mental health including Positive Futures Report (2023), Growing Up LGBT+ Report (2021), Diversity Role Models Impact Report (2022).


Concerns also extend to the impact on the school community, as the use of 'harm' and 'danger' lacks clarification, contradicting the Keeping Children Safe in Education guidance that affirms a child being LGBT+ is not inherently a safeguarding risk.


42. Do you have any further comments you would like to share on the draft of the guidance that have not been captured above?


Yes - As an organisation, we recognise that the primary obstacle to fostering LGBT+ inclusive environments in schools is a lack of confidence and understanding among teachers in creating welcoming, discrimination-free spaces - which is something not only mandated by legal obligations, but also something which, in our experience, teachers are committed to in order to support the mental health, wellbeing and educational achievement of all their

students.


The draft guidance hinders rather than aids this objective. It not only contradicts itself and other legal measures but also misrepresents the prevalent situation in schools, leaving teachers, parents, and young people misinformed. The draft guidance advocates for behaviours, approaches, and policies that can foster discrimination, potentially harming the mental health of already vulnerable young people.


The reality is that the majority of parents and teachers are supportive of trans young people, and are seeking guidance on how best to welcome them into the school environment and foster positive relations with non-trans children. This draft guidance falls short in addressing these needs, and will prove actively unhelpful in providing the necessary support for teachers aiming to create inclusive and supportive learning environments.

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