Schools may need to provide both unisex/gender-neutral and single-sex toilet facilities, according to new guidance produced by a group of heads’, governors’, teachers’ and academy trusts’ leader organisations.
Guidance for maintained schools and academies in England on the provision for transgender pupils has been jointly produced by the Association of School and College Leaders, the NAHT school leaders’ union, the National Governance Association, the Institute of School Business Leadership, the Chartered College of Teaching and the Confederation of School Trusts.
The organisations have said the briefing is not official guidance but is being provided to help members ahead of the anticipated publication of guidance by the Department for Education.
The unofficial guidance says that to meet the regulatory requirements for all pupils, depending on the needs of the pupil cohort, schools may need to provide both unisex/gender-neutral and single-sex facilities.
The guidance adds that all facilities must be suitable and conveniently located for those for whom they are provided.
“We recognise that this is not always straightforward logistically, but, pending advice from the DfE or EHRC [Equality and Human Rights Commission], this appears the clearest course in terms of both safeguarding requirements and managing the risk of legal challenge,” the document says.
Schools supporting transgender pupils
“Pending guidance from the DfE and EHRC, if a school is considering moving (fully or partially) to unisex/gender-neutral toilets, it would be wise to consult with the school community.”
The guidance also includes a section on affirmation, names and pronouns.
It says that, in accordance with the principles of the Human Rights Act, schools should normally work, with the agreement of parents, towards respecting the wishes of pupils to be the people they wish to be.
It adds: “This might include being known by a name other than that originally assigned to them, and it may include being addressed by pronouns other than those usually used for their birth sex.”
Where parents are not involved, consideration will have to be given to whether a pupil is “Gillick competent” to make a particular decision, a determination that is likely to vary depending on the significance of the decision in question.
The guidance adds: “It is often suggested that if a school would allow non-trans pupils to change the names by which they are known, it would be discriminatory not to apply the same approach to trans pupils.”
However, it also says that schools should be mindful of the finding of the Cass Review Interim Report that affirmation and social transition are not neutral acts but can have a significant impact on the pupil’s psychological functioning.
It says “this casts doubt on any assumption that changing the name by which a transgender pupil is known is necessarily equivalent to changing the name by which another pupil is referred to”.
“This briefing paper recommends that social transition should not be undertaken lightly; the Cass Review findings should be discussed with the parents and pupil where possible and should be taken into account when assessing the competence of the young person,” the guidance says.
“Some schools will wish to take a more cautious approach to social transition than previously in light of the Cass Review Interim Report findings and to look at other options for supporting pupils, pending further advice from the Cass Review, the DfE and/or EHRC.”
The document has not been officially published by the organisations involved but Tes understands it has been distributed to their members in schools.
In a joint statement, the organisations behind the guidance said: “This guidance has been jointly produced by a number of national education associations in order to help schools respond to this sensitive issue in the best interests of all pupils.
“It does not attempt to prescribe how schools should act in all scenarios, and child-specific judgements should be made in dialogue with pupils, parents and professional advisers. Instead, the guidance seeks to help schools find balanced solutions that maintain a respectful environment where all pupils are treated with dignity.
“The guidance does not constitute legal advice, but has been designed to help schools navigate a rapidly evolving landscape ahead of the anticipated publication of official guidance from the Department for Education.”
The Safe Schools Alliance group has shared the guidance online but questioned why the organisations have produced it.
A statement from the DfE said: “We know this can be a complex and sensitive topic for schools to navigate.
“The department is working towards providing guidance and we plan on consulting on a draft before final publication next year.”
