Gender questioning children – DfE consultation

In December 2023, the Department for Education (DfE) published its draft non-statutory guidance for schools and colleges relating to gender-questioning children.

Jill Donabie, partner in our education team, summarises the key areas of the guidance for schools.

What does the guidance seek to achieve?

The guidance is intended to address how schools and colleges should approach requests from pupils and students to facilitate an individual to appear more like the opposite sex.

This could include requests to change names, use different pronouns, be able to wear uniform intended for the opposite sex or use different facilities within school. These requests are known as requests for social transitioning.

‘Five principles’ approach

There are five general principles which have influenced the guidance. The guidance also suggests that schools and colleges can use these to frame their response to such requests.

These principles are:

1. Schools and colleges have statutory duties to safeguard and promote the welfare of all children.
2. Schools and colleges should be respectful and tolerant places where bullying is never tolerated.
3. Parents should not be excluded from decision taken by a school or college relating to requests for a child to socially transition.
4. Schools and colleges have specific legal duties that are framed by a child’s biological sex.
5. There is no general duty to allow a child to socially transition.

DfE has taken an overarching view that social transitioning is not a neutral act and that schools must abide by their legal duties where these are found to be incompatible with requests to socially transition. It urges schools to take a cautious approach.

Responding to requests

DfE expects schools to engage in “watchful waiting”. This means schools need to wait for a period of time before considering a request to ensure that the child has made a sustained and properly thought-through decision. The guidance does not define how long this period of time should last.

Parents should be made aware if a child has made a request to socially transition. The only exception to informing parents is if this might raise a significant risk of harm to the child.

After a period of watchful waiting, if the child still would like their request to be granted, then schools and their designated safeguarding lead are advised to take into account:

1. The school’s safeguarding obligations;
2. The view of parents;
3. The age of the child (with requests from younger children being treated with more caution);
4. Any relevant and available clinical information;
5. The seriousness and context of the request;
6. The long- and short-term impact on the child; and
7. The impact on other pupils.

Different types of requests

Registration of sex

Schools are required by law to safeguard and promote the welfare of children. It is often necessary that a child’s sex is recorded to protect them from harm. Schools, therefore, must make sure all relevant staff are aware of a gender-questioning child’s biological sex.

Registration of name

Schools must record a child’s legal name in the admissions register. However, schools are permitted to have an informal “known as” name register if necessary. Informal name changes to refer to a child with a different name should be decided in line with the factors provided above.

Pronouns

The guidance states that primary school children should not have different pronouns to their sex-based pronouns. For older children, schools do not need to specify pronouns to be used about each pupil and can decline a request to change a child’s pronouns.

Schools should only agree to a change of pronouns if they are confident that the benefit to the individual child outweighs the impact on the school community. It is expected that there will be very few occasions in which a school or college will be able to agree a change of pronouns.

If a request to change pronouns is agreed, teachers and pupils should not be compelled to use the preferred pronouns, and teachers can continue to refer to children collectively as “girls” or “boys”.

Single-sex spaces 

Schools must always protect single-sex spaces with regards to toilets, showers and changing rooms. Responding to a request to support any degree of social transition must not include allowing access to these spaces.

As a default, all children should use the toilets, showers and changing facilities designated for their biological sex unless it will cause distress for them to do so. In these instances, schools and colleges should seek to find alternative arrangements, while continuing to ensure spaces are single-sex. 

If a school has considered the relevant factors above, they may wish to consider whether they can provide or offer the use of alternative single-sex spaces for toilets, washing and changing facilities.

The School Premises (England) Regulations 2012 and the Education (Independent School Standards) Regulations 2014 impose statutory requirements for both maintained and independent schools to provide sex-separated toilets for pupils aged eight or over (apart from individual toilets in fully enclosed rooms), and suitable changing accommodation and showers for pupils who are aged 11 years or over at the start of the school year.

Residential accommodation 

No child should be allowed to share a room with a child of the opposite sex. If a child questioning their gender does not wish to share a room with another child of the same sex, alternative arrangements should be sought.

Uniform 

Where schools specify uniform items specific for girls or boys, a child who is gender questioning should, in general, be held to the same uniform standards as other children of their sex at the school.

Schools considering requests for flexibility with uniform policies should refer to DfE’s uniform guidance. Schools would not be expected to develop new uniform policies as a result of requests to socially transition. Decisions on uniform should only be made following a proper consultation with the child’s parents, having considered the relevant factors as set out above.

PE and sport

Schools should provide equal sporting opportunities for girls and boys. For older pupils, this will often mean same-sex participation in PE and sports.

For children requesting to participate in sports intended for the opposite biological sex, schools should consider:

1. The age of the child making the request;
2. How safe it would be to allow mixed-sex participation; and
3. How fair it would be to allow mixed-sex participation.

Single-sex schools

Single-sex schools can refuse to admit pupils of the other biological sex, regardless of whether the child is questioning their gender. However, a school cannot refuse to admit a child of the same biological sex on the basis that they are questioning their gender.

What happens next?

DfE’s guidance is currently non-statutory and in draft form.

DfE is seeking views and comments on the guidance through a consultation which will run until 12 March 2024. You can access the consultation and get a copy of the guidance in full here.

Please contact Jill with any questions using [email protected] or 0191 211 7933.