WPUK statement on leaked EHRC schools guidance on trans pupils

On 30th August 2019, the Telegraph published a story about schools guidance on transgender pupils being prepared by the Equality and Human Rights Commission (EHRC), a copy of which was leaked on social media.

This is WPUK’s statement on the section of the leaked draft we have seen.

We are pleased to see the EHRC acknowledge the legal and statutory obligations that schools have in developing policies that uphold the rights of all children. As the EHRC knows, schools are required to consider the impact of policies on all staff and students.

However, we have concerns about the section of the draft we have seen.

Kiri Tunks, co-founder of Woman’s Place UK, said:

“This guidance shows what a mess we create when we conflate sex and gender. The EHRC seems very confused about the difference and this advice will just muddy the waters further. The EHRC is right that publicly funded schools are obliged by the Public Sector Equality Duty to foster good relations between those with different protected characteristics but they also have a responsibility to assess the impact of any changes they make which could affect other protected groups. We are losing confidence in the EHRC’s ability to issue robust, practical advice on this question.”

We are also concerned about the draft guidance regarding single sex schools, which we believe to be misleading.

Single sex schools do not have to show ‘a legitimate aim’. Their aim is to offer single sex education which is a protected right under equality law.

The guidance from the Department for Education is clear:

“Single sex schools are able to refuse to admit pupils of the opposite sex. The exception also permits a single sex school to admit a small number of pupils from the opposite sex on an exceptional basis.” (Our emphasis)

There is no legal compulsion for a single-sex school to do this.

The Department for Education guidance also states:

“A girls’ school which permits a pupil who is undergoing gender reassignment to remain after they adopt a male gender role would not lose its single-sex status.” (Our emphasis)

Furthermore, the advice on toilets needs to cover in detail the full statutory obligations that schools and colleges are subject to:

• See our post on the regulations on toilet provision in schools in England and Wales.
• See this post from Scottish Women on the regulations on toilet provision in schools in Scotland.
• Read this Scotsman article Mixed sex in Scottish schools break regulations warn campaigners

We are very concerned that the EHRC guidance may not have properly considered safeguarding implications which are paramount when working with young people.

In particular, any guidance must give clear safeguarding guidance in relation to the proposed increases in mixed sex facilities in schools and colleges. This is particularly important given the endemic levels of sexual harassment and incidents of violence suffered by girls and young women:

• Women & Equalities Select Committee report on sexual harassment and violence at school
• Sexism It’s just everywhere! research by the National Education Union and Feminista UK
• End Violence Against Women #MeToo at School campaign 
• All Day, Every Day – a legal briefing by End Violence Against Women on sexual violence in schools
• Girl Guiding General Attitudes Survey

Given that this guidance will impact upon all students, we hope and expect that the EHRC will have taken all reasonable steps to consult widely during the development of this draft guidance. We do not know from the leaked document who has been consulted during the development of this draft guidance but we would expect a wide range of groups to have been involved including parent groups, student councils, education staff and unions, faith groups, disability advocates and women’s groups as well as LGBT+ groups.

If this has not yet happened, we urge the EHRC to implement such a wide-ranging consultation before it publishes its final draft.

8th September 2019