The EHRC consultation on their draft technical guidance for schools is open until September 30th. We have responded to the consultation for schools in England but there are also options for schools in Wales and Scotland. Our answers to the consultation questions are relevant for all three.
Submit your own response to the EHRC consultation here.
You can read our responses to the consultation on the following pdf and read our overall analysis below.
Our overall analysis of the technical guidance for schools
The problem with the EHRC draft technical guidance for schools starts with the Definitions. The inclusion of the term ‘trans’ stands out in a list of otherwise objective school- and guidance-related terms. The use of the word ‘trans’ creates the problem of interpretation of law and the muddled, misleading guidance that follows.
The definition includes an explanation that the term ‘trans’ does not include people who may identify as trans or transgender but who do not fall within the Act’s definition of Gender Reassignment. This is confusing. How is a teacher expected to judge this in the case of a child who says “I’m trans”? Using the term ‘trans pupil’ in the guidance confounds the issue: it is not clear whether a ‘trans pupil’ has the protected characteristic of Gender Reassignment or not.
The word ‘trans’ is commonly used as an umbrella term for people with a wide range of different ‘gender identities’, it is therefore a belief-based category that goes well beyond the Equality Act protected characteristic. The guidance makes the mistake of using a fashionable but subjective term that includes a far wider range of people into a protected characteristic designed for a discreet, defined group.
If a child does fall within the protected characteristic Gender Reassignment then according to the Act they are protected as a ‘transsexual person.’ Gender Reassignment protects a person who takes a specific course of action or makes a specific decision. In its language it is clearly referring to adults who are responsible for their actions and capable of making adult decisions.
Applying the protected characteristic to children, who have not yet achieved that level of personal responsibility or are not developmentally equipped to make such decisions, is contested.
By using the word ‘trans’ the guidance must then, logically, use the terms ‘trans pupil’, ‘trans boy’ and ‘trans girl.’ In this way the Technical Guidance falls into the trap of using concepts and language about children that places the EHRC within a distinct and disputed ideological position. It also creates misleading guidance. Why should a ‘trans girl’ not be allowed to use the girls’ toilets and changing-rooms? Language matters.
There is a further point about an Equalities and Human Rights framing of policies affecting children which requires consideration. Equality law cannot override safeguarding, and applying an Equalities lens must not distract from society’s obligation to protect children and childhood. Having a protected characteristic does not give leave to treat a child in exactly the same way as an adult with the same protected characteristic would be treated.
Treating a child as an adult, or assumed to have adult levels of understanding, is a recognised form of child abuse. Schools are guided by the updated government safeguarding guidance Keeping Children Safe in Education which includes the following in its definition of emotional abuse:
“It may feature age or developmentally inappropriate expectations being imposed on children. These may include interactions that are beyond a child’s developmental capability as well as overprotection and limitation of exploration and learning or preventing the child from participating in normal social interaction.”
The Gender Reassignment protected characteristic requires particular caution. If a child (of any age) is ‘proposing to undergo…reassignment of their sex’ this raises questions. Understanding and safeguarding that child comes first, above considerations of not falling foul of the Equality Act. A child should not be unquestioningly placed in a protected category and assumed to have adult understanding and capabilities.
This point was acknowledged even for children at the point of referral or on the waiting list for treatment at a gender clinic, in the judgment of AA-ORS v NHS Commission Board (2023) and agreed by NHS England.
“The whole cohort of patients cannot be treated as “proposing to undergo” a process (or part of a process) for the “purpose of reassigning” their sex “by changing physiological or other attributes of sex” as a class or cohort. To apply such a definition to these individuals is to make assumptions upon the aims and intentions of those referred, the certainty of those desires and their outward manifestation, and upon the appropriate treatment that may be offered and accepted in due course. This is particularly likely to be true in the case of very young children.”
In a school, the same developmental considerations apply to all children, not just the child who says they are ‘trans.’ What adults may understand as a temporary social arrangement for one child may be understood by other children as a literal change of sex, causing confusion or anxiety. Children struggling with the normal range of adolescent anxieties about their appearance and identity may learn that body rejection confers social rewards and affords special status that the more vulnerable children will want to emulate.
Example 3.10 illustrates this perfectly. A boy who comes to school wearing the girls’ uniform would ordinarily be punished or sent home to change, but if he says he identifies as a girl he will be given special dispensation to flout the rules all other children have to follow.
The good practice example for changing-rooms (5.6) rewards the child who says they are ‘trans’ with their own private changing-room. The example for boarding accommodation (10.2) rewards the child with their own room ‘with its own ensuite bathroom with a toilet and shower’ while all other children have to share dormitories. This is not upholding rights but bestowing privileges.
In implementing such policies the school would be denying the child the normal experiences of same-sex socialisation and negotiation important for their development and their resilience in the real world.
A school has a duty to consider the impact of policies on all children in the school and cannot implement policy for one child without considering the effect on other children, particularly when they are expected to be active participants in a social policy that requires them to change their language. Using the wrong pronouns about one child is likely to disproportionately disadvantage autistic children and children with learning disabilities and speech and language difficulties.
The draft guidance risks exceptionalising children who say they are ‘trans’ by the assumption that it is difficult for them to follow the normal sex-based rules that keep all children safe. The term ‘trans’ also risks linking children with a varied range of discreet vulnerabilities together as a homogenous group requiring the same understanding and approach.
Where individualised, developmentally-appropriate care is most needed, there is a danger that these children may be treated instead as units of equalities monitoring.
Consideration of child development and the approach to children who are distressed or confused about their sex is an area outside the Equality Act, and is governed by KCSIE which in turn is informed by the Cass Review recommendations. The Cass Review refers to these children as ‘gender-distressed’ or ‘children with gender-related distress.’ KCSIE calls them ‘children who are questioning their gender.’ The EHRC should use language consistent with Cass and government guidance to avoid politicisation of a vulnerable cohort of children who deserve the same level of thought and care as every other child experiencing difficulties in their lives.
The Equality Act protected characteristic gender reassignment should not be used to water down the definition of the protected characteristic sex by implementing any policy on the assumption that sex is not a stable characteristic. This is particularly important in the case of schools, who have a duty of care towards children who are still developing, vulnerable to ideas they do not yet fully understand and fully trusting of the adults in positions of authority who teach them.
Submit your own response to the EHRC consultation here. Deadline September 30th 2026.