Speak to a trained member of the Mermaids team. 08088010400

Content Note: these proposals are upsetting and scary for our community, particularly those with lived experience of transphobia in school. Please take care when reading. 

The Government is consulting on its proposed trans guidance for schools and colleges in England, closing on Tuesday 12 March. 

All young people deserve an accepting and supportive school environment to learn and be their authentic selves. Not only would this guidance make schools unsafe for trans children and young people, it actively seeks to deny their existence.

At no point does the guidance offer any advice on how to include and support trans young people – its sole focus looks to be making schools hostile and exclusionary for trans students.

The proposed guidance seeks to stop young people from coming out as trans through actively discouraging ‘social transition’ and it strips them of autonomy by requiring teachers to forcibly ‘out’ students as trans to their parents. Two thirds of trans pupils experience transphobic bullying and this guidance is very likely to make things worse. 

It is important to note that these are proposals, not final guidance, which will take months to produce – schools have no duty to apply this guidance now. Many legal experts, including the Department for Education’s own lawyers, believe that the guidance may be illegal. 

We have summarised our understanding of the draft guidance. If you find this difficult and need support, please contact our helpline on 0808 801 0400. We’re here for you Monday to Friday, 9am – 9pm.

What the guidance says about… Coming out as trans at school

The guidance states that to come out as trans at school, be referred to using your chosen name and pronouns and allowed to wear your preferred uniform (referred to as social transition in the guidance) will require a three step process: 

  1. Delay
  • Schools must wait for an unspecified period of time after a young person says they want to come out at school. 
  1. Inform Parents
  • The only exception to this is where forcibly outing a young person to their family carries a “significant risk of harm”.
  1. Consider other ‘factors’
  • Schools are encouraged to consider a range of reasons why a young person should not be supported to socially transition including:
    • Whether parents agree (their views should be given ‘great weight’)
    • Age (greater caution for young pupils)
    • If a pupil’s decision is related to being LGB, neurodiverse or “influenced” by peers and social media.
    • Unspecified ‘impacts’ on the student and wider school community.

The draft guidance states that schools should only support a pupil to socially transition in “exceptional cases”. 

Mermaids’ view

Schools should listen to all young people, respect their autonomy and prioritise their best interests. 

The decision to come out as trans is a brave one and rarely taken lightly, with many fearing they will be met by rejection or ignorance. Enforcing an unspecified period of delay is needlessly cruel and remains unjustified in the guidance. 

Requiring young people to be forcibly ‘outed’ to their parents will damage trusting student/teacher relationships in schools, and potentially put students at risk of harm or abuse. 

Meanwhile, the ‘other factors’ teachers have to consider before affirming a trans pupil are absurd – falsely implying that being trans might be “caused” by social media for example, and could result in undetermined “harms” to the wider school community. 

We welcome the improved legal protections, awareness and resources in recent years that have allowed more trans young people to be open about who they are. 

What the guidance says about… Using your chosen name, pronouns, uniform and gender/sex markers

Even after the above process, the draft guidance imposes additional barriers to trans pupils to be their authentic selves at school. 

  • Pronouns
    • The draft guidance states that primary aged children should not change their pronouns at school. 
    • For older pupils, even after completing the process outlined above, teachers will not be required to use their chosen pronouns. 
  • Names
    • Schools will be required to record a pupil’s legal name on their systems and can only change an informal (‘known as’) name after having first consulted with a student’s parents.
  • Gender/sex markers
    • Schools will be required to record a young person’s sex assigned at birth and should share this information with all ‘relevant staff.’ 
  • Uniform
    • Where schools have gendered uniforms, it is proposed that students should have parental consent before being allowed uniform changes. 
    • However, schools will not be able to allow trans pupils to wear swimwear consistent with their gender identity. 

Mermaids’ view

All students deserve to have their basic human rights and dignity upheld at school.

Preventing trans students from being themselves may lead them to avoid school altogether, depriving them of an education.

A trans young person’s name, pronoun and clothing is their choice and that must be respected. Those aged 16 and over can already change their legal name without parental consent – why should this be any different for their ‘known as’ name at school?

Schools that follow this guidance may be at risk of legal challenge – deliberate misgendering may be considered unlawful discrimination, while disclosing a person’s trans status without permission may violate their right to privacy. We find it concerning that the Government has prioritised its anti-trans agenda over offering schools legally-rigorous, supportive guidance.

What the guidance says about… Using facilities and playing sport consistent with your gender

Many schools have gendered facilities, like toilets and changing rooms, and will separate pupils by gender for overnight residentials or PE and sport. The guidance suggests an exclusion-first approach, saying that schools should take the default approach that trans pupils be treated according to their sex assigned at birth, unless it will ‘cause them distress to do so.’

  • Toilets and Changing Rooms
    • Where trans pupils do not want to use a toilet or changing room aligning with their sex assigned at birth, they can be provided an alternative that can be locked from the inside and for use one at a time.
  • Sport
    • Where ‘physical’ sports are separated by gender, the guidance states pupils must participate based on their assigned sex at birth. 
    • Schools are advised to consider guidance issued by each sport’s national governing bodies on including trans participants. 
  • Residentials/Boarding
    • The guidance states that trans pupils can only stay in rooms aligning with the sex they were assigned at birth i.e. a trans boy cannot stay in the boys’ dorm. 
  • Single Sex Schools
    • Single-sex schools are only able to admit students whose sex assigned at birth differs from the school’s usual cohort in exceptional circumstances. For example, a trans boy could be admitted to a boys’ school, but this is not guaranteed. 

Mermaids’ view

Schools have a duty to provide a supportive and inclusive environment for all students, including facilities that enable trans young people to feel comfortable

Forcing trans young people to use separate facilities will further isolate pupils who already experience disproportionate harassment and bullying. Equally, for many trans young people, being told they cannot play in sports teams consistent with their gender identity will be an effective ban on participation. 

It is typical of the Government’s approach that the guidance provides no advice on how to support and include trans young people in schools, with its sole focus on justifications to exclude and even humiliate trans students. 

What’s next?

We would encourage those concerned about these changes to respond to the consultation, which we will be publishing advice on soon. In the meantime, you can write to your MP asking them to speak out against this proposed guidance and support our campaign to create safe, supportive schools. 

Our dedicated supportive schools page also provides resources for inclusive educators, including best practice toolkits and information about training and support. 

No matter how the Government decides to proceed, Mermaids will continue to campaign for schools where trans young people can thrive, and provide support to all those affected by rising transphobia.

Mermaids’ Policy team looks at recent changes to the EHRC’s technical guidance for how schools should implement the Equality Act, and what it might mean for trans youth.

What have the Equality and Human Rights Commission (EHRC) said?

The EHRC have recently made changes to their technical guidance for how schools in England should implement the Equality Act 2010. 

Robin Moira White, a barrister specialising in discrimination, has disputed its interpretation of existing equalities law. 

It is important to note that the law has not changed, nor is this the long-awaited trans schools guidance promised by the UK Government.

In the absence of supportive guidance in England, schools may wish to look at trans-inclusive toolkits produced by the Scottish Government and Brighton & Hove City Council for examples of best practice. 

Is it okay to misgender trans pupils?

The EHRC removed an example from the guidance explaining that a school refusing to use a trans pupil’s chosen name would be discriminatory. Despite misleading reports, misgendering a trans pupil remains unacceptable, and the guidance still includes examples, including the one below, which suggest that refusing to use a trans young person’s chosen name and pronouns is not lawful:

“A member of school staff repeatedly tells a transsexual pupil that ‘he’ should not dress like a girl and that ‘he’ looks silly, which causes the pupil great distress. This would not be covered by the harassment provisions, because it is related to gender reassignment, but could constitute direct discrimination on the grounds of gender reassignment.” (page 65)

All young people try out different ways of presenting as they grow up. This should not be different for trans young people, who deserve the basic dignity of being listened to and respected.

Can trans young people use facilities matching their gender?

Under equality law, trans people can only be excluded from single-sex spaces where it is considered a “proportionate means of achieving a legitimate aim”.

Robin Moira White writes that lawfully excluding trans pupils wouldseem very unlikely where a pupil has declared themselves trans and so their circumstances are known to the school and there is no evidence of inappropriate behaviour in the use of toilets or changing rooms.”

In Brighton & Hove, where inclusive guidance has been followed by schools since 2013, trans young people have successfully been supported to access single-sex spaces in line with their gender identity without issue. 

Trans young people face disproportionate levels of bullying and harassment with toilets and changing rooms provoking significant anxiety. Schools have a duty to provide a supportive and inclusive environment for all students, including facilities that enable trans young people to feel comfortable and be healthy. 

How can I support trans young people at school?

The rhetoric from the Government toward trans children and young people seeks to deny their very existence. Their proposed approach to schools’ guidance would be a new Section 28 for trans pupils, if enforced.

While we continue to await publication of draft guidance from the Department of Education, our advice remains that schools continue to act within the law to uphold the safety of trans youth. 

Other ways you can get involved:

➡️ Write to your MP using our tool, asking they only support guidance that protects trans young people.

➡️ Share our tool with your networks. 

➡️ Consult The Good Law Project’s expert legal advice for trans pupils and their parents.

➡️ Make a donation and support our schools’ work.

Today (10 August 2022), Suella Braverman QC MP, the Attorney General, made a speech for the Policy Exchange think tank on the affirmation of trans, non-binary and gender diverse children in school.

The contents of Braverman’s speech do not reflect our understanding of the Equality Act 2010 or the realities of being a trans child in schools. Her speech is not legally binding on schools and does not mark a change in school’s duties toward trans children in their care. 

What does the Equality Act say?

Under the Equality Act 2010, people with the characteristic of “gender reassignment” are protected from discrimination, harassment and victimisation. This captures anyone who is trans, regardless of medical intervention.

Schools may also be subject to a Public Sector Equality Duty under the Equality Act 2010, which requires them to advance equality of opportunity, foster good relations and have due regard to the need to minimise disadvantages suffered by persons who share a relevant protected characteristic.

As we understand it, this means that it is contrary to the Equality Act if schools refuse to allow a child to wear the uniform that matches their gender identity or use a single-sex facility that matches their gender identity.

There is a high bar for the exclusion of trans children from sports where their inclusion may undermine safety or fairness. We believe that access to sport is a fundamental part of childhood, teaching young people important life lessons about teamwork, navigating new environments, building confidence and making friends, and has numerous physical and emotional benefits that make us who we are. To exclude trans, non-binary and gender-diverse young people from such experiences is to deny them a childhood. 

The benefits of inclusion

Using the correct pronouns (e.g. he, she, they) of a child can be an important and simple way to create an inclusive, respectful school environment. Studies show the real impact this can have on a trans or gender-diverse person, including, for example, a 71% reduction of symptoms of depression (Russell et al, Journal of Adolescent Health 63 (2018): “Chosen Name Use Is Linked to Reduced Depressive Symptoms, Suicidal Ideation, and Suicidal Behavior Among Transgender Youth”).

A child being trans does not make them a safeguarding risk to other children and affirming and supporting trans children does not hurt other children in their peer group. Furthermore, the Equality Act makes clear that medical intervention or diagnosis is not required for a child to use the name or pronouns of their choice.

Our view

We do not believe that providing a supportive and inclusive environment disadvantages anyone. Trans rights are not to the exclusion of others’ rights but in addition to the benefits and freedoms enjoyed by the majority.

Education is a fundamental human right and trans children need support and protection to ensure the same standard of education as everyone else, rather than additional barriers proposed by some. We urge schools to be agile and supportive and take extra measures to ensure that trans children can enjoy the same opportunities as everyone else. 

If something happens at your school and you need support, contact [email protected]. We also work with schools to help them strive to be as inclusive as possible. If you’re interested in speaking to our training team, please email [email protected].