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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.

In a shameful act of trans exclusion, the Equality and Human Rights Commission yesterday (Wednesday 26 January) failed our community, calling for gender identity to be removed from the proposed ban on conversion therapy legislation in the first instance to allow for further “scrutiny”. The Commission also wrote to the Scottish Government to further delay its work to update the Gender Recognition Act.

The ban on conversion therapy and gender recognition has endured several years of “scrutiny” and will be subject to more throughout the respective legislative processes. These years of public discourse have resulted in trans people and communities being falsely positioned as dangerous and predatory. It has created damaging and misleading narratives which are now well embedded within mainstream discourse and the EHRC is demonstrating that it appears to have been captured by anti-trans rhetoric which seeks to derail UK and Scottish Government plans. 

Systemic oppression of the trans community

Both of these actions continue a systemic oppression of the trans community – seemingly ever-increasing, and exacerbated by a powerful anti-gender movement that has swept through Europe, including the UK, as recognised by international human rights authorities. 

This is a pivotal moment in our history when we should expect our “impartial” Equality Watchdog to see through the blatant distraction techniques of a very vocal minority and uphold the proposed outright ban on conversion therapy and improvement to gender recognition in Scotland. They have not.

Instead, they have continued to push the erroneous idea that sex based rights and trans rights are at odds with one another and have actively invited further delays and restrictions to our liberties, freedoms and protections. Trans people accessing recognition and protection is legally possible without the charade of a rights-battle or “polarised debate”. When it comes to our human rights, there should be no debate. 

Is the EHRC fit for purpose?

The EHRC recognises on their Twitter that we are in “changing times” and they’re right about that – but the change is one of regression. It is worrying to see yet again that it’s institutions like the EHRC – organisations that we should be able to depend on – are in fact actively suggesting acts of regression that only work to refuse social, economic, and political progression for our community, which is truly damaging. Make no mistake – if they succeed in delaying, restricting and/or removing the rights of trans people – this sets a dangerous precedent for all. 

Until we as a community see a significant investment, meaningful engagement and progressive action taken by the EHRC towards progressing trans rights, we see no merit in further dialogue. We must also question the authority the EHRC has and ask whether it is fit for purpose and we call on the Government and international bodies to urgently review the EHRC and ensure that trans people’s rights are effectively supported by this institution. 

The UK can no longer rest on its history as an “LGBT+ rights pioneer”. We fall woefully behind other countries at a time when, ironically, we’re fast approaching the international LGBT+ conference, Safe To Be Me, which the UK is hosting. If the UK Government really wants trans people to feel “safe to be”, then they must show leadership and not to be deterred. 

We will be shocked if the EHRC’s submission manages to change the UK’s position on a ban on conversion practice. Irrespective of this, we felt a duty to call them out. We are also pleased to confirm that the Scottish Government has today made their position clear, stating “our support for trans rights does not conflict with our continued strong commitment to advance equality and to protect and uphold women’s rights.” Go Scotland. 

What can YOU do?

Adding your voice will help ensure the EHRC continues to be part of a minority viewpoint. We are, however, one organisation and to truly make change, we now urge everyone who is outraged by the Commission’s conduct to act.

1. Fill in the consultation for the ban on conversion therapy.

2. Write to your MP to tell them how you feel. 

4. Donate and sign up to our newsletter to support Mermaids’ work in actively speaking up for trans, non-binary and gender diverse young people and their families. 

We will always keep speaking up for our community. Remember, we are here for you.

If you’ve been affected by the recent news around conversion therapy, Galop‘s National Conversion Therapy Helpline is open Monday – Friday 10am – 4pm. Call 0800 130 3335 or email [email protected].