Gender Draft Guidance

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The Department for Education has published draft guidance relating to trans and non-binary students in schools, which they are calling 'Gender Questioning Children'.

This is draft, non-statutory guidance, which opened for a 12 week consultation period that ended on Tuesday 12th March. This is not new law, and it is not statutory guidance.

Currently, teachers and schools should not make changes which are informed by this draft guidance. Teachers and schools should continue to follow the statutory safeguarding guidance set out in 'Keeping Children Safe in Education' which states:

'The fact that a child or a young person may be LGBT is not in itself an inherent risk factor for harm.'
'It is... vital that staff endeavour to reduce the additional barriers faced [by transgender children] and provide a safe space for them to speak out or share their concerns with members of staff.'

Below you can find out more about the draft guidance, and the consultation period. The consultation is now closed - we will update this page as new information becomes available.

The draft guidance is titled 'Gender Questioning Children: Non-statutory guidance for schools and colleges in England.' It is draft non-statutory guidance, and the consultation is now closed.

The guidance opens with a foreward signed by Secretatry of State for Education Gillian Keegan, and Minister for Women and Equalities Kemi Badenoch. In this forward, they set out the five guiding principles of the draft guidance:

Schools and colleges have statutory duties to safeguard and promote the welfare of all children.
Schools and colleges should be respectful and tolerant places where bullying is never tolerated.
Parents should not be excluded from decisions taken by a school or college relating to requests for a child to 'socially transition'.
Schools and colleges have specific legal duties that are framed by a child's biological sex.
There is no general duty to allow a child to 'socially transition'.

The draft guidance then moves on to set out who the guidance is for, outline these principles in more detail, and outline their perspective on relevent language and terminology.

The draft guidance then sets out the steps it encourages teachers and parents to follow when responding to a request from a 'gender questioining child'. These steps include:

A period of time, which they are calling 'watchful waiting' - although the length of this period is not defined.
Making parents aware - although the draft guidance does awknowledge there are 'very rare situations where informing parents might raise a significant risk of harm to the child'.
Following watchful waiting and parental invovelvement, the relevent teachers and safeguarding lead are advised to make decisions, taking into account: safeguarding obligations; the views of parents; the age of the child; relevant clinical information; the seriousness and context of the request; the long- and short-term impact on the child; and impact on other children

Finally, the guidance applies the guiding principles and steps to a variety of specific examples or contexts including:

Registration of Names and Sex
Changing Names
Pronouns
Toilets, Changing Rooms, Residential Accommodation
Uniform
Physical Education & Sport
Single-Sex Schools

The draft guidance ends with an annex referencing legal considerations.

Once again, we encourage everybody to read the draft guidance in full. The TNB Network have created a comprehensive response to the guidance, which we would encorage you to read and consider alongisde the draft guidance. You can access the full version here, and an easy read reduced version here. We would also encourage you to read the legal commentary on the draft guidance, published by barrister Robin Moira Write, available here.

The draft guidance opend for a 12-week consultation period, which ending on Tuesday 12th March. Below you can find out more about what that consultation looked like.

The consultation invited responses from both individuals and organoisations.

When completing the consultation, people were first asked about their role, they were then asked some demographic questions. Following that, they were asked thirty two questions and sub-questions relating to different areas of the guidance. These questions were:

Introduction Questions

Do you think the structure of the guidance is easy to follow?
If you answered no, how could the structure of the guidance change to make it easier to follow?
Does this guidance provide practical advice to support schools and colleges to meet their duties effectively?
If you answered no, how could we improve deliverability placed on schools and colleges whilst still providing for schools to meet their duties?

Responding to Requests and Engaging parents

Does this section provide enough detail to help schools and colleges support children?
If you answered no, in which of the following areas do schools and colleges need further guidance to support a child? [tick all that apply]
Think about the points outlined for schools and colleges to consider on pages 9-11 regarding making decisions about how to respond to requests for social transition. Are these points helpful?
If you answered no, what considerations would be more helpful for schools and colleges to consider? For example, when assessing whether to support a child wishing to socially transition, do you think different weight should be given to the views of parents, the age of the child, the long- and short-term impacts on the child, the impact on other children, and any relevant clinical or medical advice?

Registration of Name and Sex

Does this section on page 12 provide enough detail for schools and colleges to ensure each child is recorded correctly and according to the Education Act 1996, Pupil Registration (England) Regulations 2006, GDPR and the Data Protection Act?
If you answered no, what further information should be included to help schools and colleges?

Changing Names

Does this section on page 12 provide enough detail for schools and colleges to respond to a child’s requests to change their name?
If you answered no, in which of the following areas do schools and colleges need further guidance to respond to a child’s requests to change their name? [tick all that apply]

Pronouns

Does this section on page 13 provide enough detail for schools and colleges to respond to a child’s requests to change their pronouns?
If you answered no, in which of the following areas do schools and colleges need further guidance to respond to a child’s requests to change their pronouns? [tick all that apply]

Single-Sex Spaces - Toilets, Changing Rooms and Showers and Boarding and Residential Accommodation

Does this section on pages 14 and 15 provide enough detail for schools and colleges to respond when a child who is questioning their gender makes a request to use facilities (e.g. toilets, changing rooms, showers and boarding and residential accommodation) designated for the opposite sex?
If you answered no, in which of the following areas do schools and colleges need further guidance? [tick all that apply]
Think about the circumstances provided in the guidance on pages 14 and 15, outlining the option for schools and colleges to find alternative facilities. Does the guidance provide enough support to help schools and colleges determine how to offer alternative facilities?
Does this section provide enough detail for schools and colleges to support children who do not wish to use accommodation that is designated for their sex in relation to boarding and overnight accommodation?
If you answered no, in which of the following areas do schools and colleges need further guidance? [tick all that apply]

Uniform

Does this section on page 16 provide enough detail for schools and colleges to respond to a gender-questioning child who makes a request in relation to uniform?
If you answered no, in which of the following areas do schools and colleges need further guidance to respond to a gender-questioning child, who makes a request in relation to uniform? [tick all that apply]

PE & Sport

Does this section on page 17 provide enough information on what to do if a gender questioning child asks to participate in a certain sport or activity with the opposite sex?
If you answered no, in which of the following areas do schools and colleges need further guidance to support children taking part in PE or sport? [tick all that apply]
Think about the circumstances provided in the guidance on page 17, outlining the need for fairness and safety in PE or sport. Does the guidance provide enough support to help schools and colleges determine what is fair and safe?
If you answered no, what further support should be included to help schools and colleges determine what is fair and safe in PE or sport?

Single-sex schools

Does the guidance on the application of the Equality Act to admissions to single sex schools on page 18 provide enough information to support single sex schools in making decisions about the admission of children who are questioning their gender?
If you answered no, in which of the following areas do schools and colleges need further guidance to support effective decisions on the admission of children who are questioning their gender [tick all that apply]
To individuals responding who work in, or represent single-sex schools: Has your single-sex school previously had to make a decision on the admission to your school of a child of the opposite sex (regardless of whether or not the school admitted the child)?
If yes, was that child questioning their gender?

General

Do you have any comments regarding the potential impact of the guidance on those who share a protected characteristic under the Equality Act 2010, whether negative or positive? How could any adverse impact be reduced and are there any other ways we could advance equality of opportunity or foster good relations between those who share a protected characteristic and those who do not?
Do you have any comments on the overall approach of the guidance?
Do you have any further comments you would like to share on the draft of the guidance that have not been captured above?

This consultation period ended on Tuesday 12th March.

You can find further resources and support related to the guidance below. We will continue to update this page as the results of the consultation become known.

The Full Draft Guidance 'Gender Questioning Children'

The TNB Network's comprehensive response to the draft guidance (full version).

The TNB Network's comprehensive response to the draft guidance (easy read version).

Legal commentary on the Department for Education Draft Guidance, by Barrister Robin Moira Write.

The Scottish Guidance for Supporting Transgender Pupils in Schools is an alternative, more inclusive, guidance document to read.

Please remember - and communicate with others - that this is draft, non-statutory guidance. This is not new law, and it is not statutory guidance. Currently, teachers and schools should not make changes which are informed by this draft guidance. Teachers and schools should continue to follow the statutory safeguarding guidance set out in 'Keeping Children Safe in Education'.