The Equality and Human Rights Commission (EHRC) has responded to the Department for Education’s consultation on its draft guidance on gender questioning children for schools and colleges.
The advice from the equality regulator focuses on how the guidance can better represent the Equality Act 2010 and the Human Rights Act 1998, so that it can better support schools to take lawful decisions and avoid discrimination.
Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said:
“We welcome the long-awaited publication of this guidance. It represents a step towards providing schools and colleges in England with the practical advice they need.
“We recognise that this is a sensitive matter, which has been the subject of much polarised public debate. It is also a topic that engages the rights of several protected characteristic groups, including sex, gender reassignment and religion or belief.
“Sometimes it is necessary to balance the rights of these groups. On a day-to-day basis, this challenge often falls to public bodies and service providers like schools and colleges. That’s why it is so essential that they have the information and guidance they need – including a full understanding of the law – to balance pupils’ rights and avoid discriminatory practices.”
Key recommendations made in the EHRC’s response include:
- The guidance should more clearly explain and refer to key concepts in the Equality Act 2010, particularly direct and indirect discrimination. This will help schools to balance the rights of different groups.
- The guidance should clearly explain that children cannot legally change their sex, but they can have the protected characteristic of gender reassignment.
- The guidance should uphold the rights contained within the UN Convention on the Rights of the Child. This convention sets out that the weight given to the responsibilities, rights and duties of parents should be consistent with the capacity of the child, which will usually evolve with age.
- Further reference could be made to key rights under the Human Rights Act, including Article 8 (right to respect for privacy and family life), Article 9 (freedom of thought or belief) and Article 10 (freedom of expression).
- The best way to avoid discriminatory practices is for schools to develop policies and flexibly apply them to take informed and sensitive decisions on requests relating to aspects of social transition.
Read the consultation response here.
Notes to editors
- On 22 September 2023, the EHRC published updated Technical Guidance for Schools in England and Scotland, on legal obligations for schools under the Equality Act 2010.
- The EHRC’s Technical Guidance for Schools focuses on the practical implementation of the Equality Act 2010. It outlines the obligations the Equality Act places upon schools, regarding pupils with protected characteristics, and helps school leaders understand and comply with the Act.
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