Teachers are struggling to support transgender and non-binary students owing to a lack of guidance from the Department for Education, according to a new YouGov poll commissioned by the human rights organisation Sex Matters.

In the survey of 519 secondary school teachers, undertaken in February, 85 per cent reported an increase in the number of students identifying as transgender or non-binary in the past three years, with 79 per cent of those polled reporting that there are trans or non-binary students in their school.

Many of those surveyed felt ill-equipped to support the students, with 41 per cent of teachers saying they felt their school policy was unclear. And although 81 per cent of teachers felt confident in being able to interact with their trans and non-binary students, a quarter of teachers said they didn’t feel confident discussing trans issues with their colleagues.

Given this context, 61 per cent of teachers polled said they would welcome more resources that have been approved by the DfE to assist with their work in schools supporting transgender and non-binary students.

These findings mirror the experiences relayed to teaching unions and associations, which also report an increase in questions from their members regarding the best approach to supporting trans students.

“Our member advice teams have been, and continue to be, contacted by leaders around these issues, including having to make difficult decisions with legal and safeguarding implications,” said a spokesperson from the NAHT school leaders’ union.

The NAHT gave the examples of “admissions to single-sex schools, participation in sport, the provision of toilets and changing rooms, and the organisation of trips involving shared accommodation”.

The Association of School and College Leaders has also seen an increase in advice requests. Julie McCulloch, director of policy, is unsurprised by the survey results and says that, anecdotally, it does seem to be the case that the number of transgender and non-binary students has increased in schools over the past few years and so needs more support from the government.

“There are some issues that are complex and sensitive to deal with and, at present, schools have to decide on policies without any reference to an established national approach,” says McCulloch.

Although schools will be thinking “very carefully” about how to handle these issues, she says, it is “inevitable” that we are seeing “different policies in different schools”.

McCulloch gives the example of single-sex schools and says there is “presently no guidance available on whether they should admit a student who was born one sex but identifies as another, and it is likely that there will be strong views in both directions. This leaves them open to criticism, and even potentially to legal challenge, whatever they decide.”

It’s not just headteachers who are worried. Edapt - a subscription service that provides teachers and school staff with edu-legal support in individual employment disputes and allegations - says it has also seen a rise in queries.

“We have certainly seen this to be a live issue among our subscribers, which has included providing teachers with support in serious cases where they had not received sufficient guidance or training,” an Edapt spokesperson told Tes.

Outside of schools, charities are becoming increasingly concerned, too.

Marcia Cameron, safeguarding manager at the National Society for the Prevention of Cruelty to Children, says that “without the right support in schools, it can be difficult and confusing for transgender children to accept themselves, and feel safe and included”.

She calls upon the government to “ensure they provide guidance to all schools that is clear and consistent, and covers a range of topics, inclusive of teaching about different gender identities, tackling transphobia and the use of changing facilities in schools”.

The latter is also a concern for the Association for Physical Education.

“There has been an exponential increase in questions about catering for trans and non-binary students at both primary and secondary,” a spokesperson told Tes. “Any guidance would be helpful, and the main thing is it must be consistent across the country because it needs to be fair. We would welcome it and want to be involved in it, as it is really important that this is centrally led, but the government must also listen to the workforce.”

How useful would guidance be day to day, though, if it wasn’t accompanied by legal clarification on trans support, too? Michael Brotherton, partner of Stone King Solicitors and a specialist in education law, says the impact of guidance would be limited without legal clarity.

“In terms of the law, we have the Equality Act. It’s clear what the Equality Act says - you must not discriminate,” he says. “And while indirect discrimination may potentially be justified, this is where the clarity issues arise because it is difficult to be certain if the justification is sufficient and proportionate.”

Brotherton says it is this query about whether a school’s actions are “justifiable” that causes concern.

“The guidance can only go so far because it can only go as far as what the law says. In law, it is clear - you cannot directly discriminate. However, if the discrimination is ‘indirect’ then if you can argue your actions are proportionate, then it is justified.”

He gives an example of how complex the issue of toilets can be.

“There is always a procedure to go through - there needs to be a risk assessment. For example, with sharing facilities, what is the risk to the (for example) female pupils? Not just of harm but privacy issues. This is a nuanced area and proper thought needs to be given to everyone who is affected by that decision.”

As such, he doubts whether one-size-fits-all guidance can help.

“It will never reach a tick-box policy. The law is filled with grey areas and interpretation - and the Equality Act and indirect discrimination is one of those ‘it depends’ areas,” he says.

However, Brotherton does say he is not claiming that guidance will be of no help at all.

“It’s quite telling that there hasn’t been any Equality and Human Rights Commission guidance specifically aimed at schools on trans students - notwithstanding it being contemplated back in 2019, and I think it’s because nobody quite knows how to set it out,” he says. “Surely it would make sense to review the guidance there is, and consider what can we do to strengthen it to assist schools (and therefore students) in creating their policies and making their decisions.”

A spokesperson for the Department for Education said they appreciate this is a challenging area.

“We recognise that gender identity can be complex and sensitive topic for schools to navigate. We know many teachers are having these important conversations with their pupils, including through the Relationship, Sex, and Health Education (RSHE) curriculum which is designed to foster respect for others, in a way that respects everyone’s views.

“We will be working with the Equalities and Human Rights Commission as we consider our next steps for supporting schools in this area.”