Equality Act guide

Sex Matters and Transgender Trend have published new guidance for schools on how to support children with gender dysphoria and their peers, in line with the Equality Act 2010. 

The guidance recognises that pupils who are experiencing gender issues, or who identify as transgender, should not be treated less favourably than their peers, but schools should remember that such children have not actually changed sex. 

It should be made clear to all in the school community that everyone is welcome and included – but it is not “transphobic” to recognise that everyone has a sex. This is crucial for equality, safeguarding and sex and relationships education.

The Guide “Boys and Girls and the Equality Act” was produced by Sex Matters and Transgender Trend with input from lawyers and teachers. It seeks to provide practical workable advice for how schools can protect everybody’s needs and rights.

It has been produced following concern about the lack of government guidance for schools. The  Equality and Human Rights Commission began developing guidance for schools in 2017 but has halted work on the project. Local authorities in several areas have produced guidance and then withdrawn it after legal challenge.

This guide is for:

  • Teachers, school leadership teams and governors in both state and private schools at primary and secondary levels setting rules and policies
  • Parents and young people seeking to understand their rights
  • Local education authorities producing their own guidance

The guide includes a model policy which schools can adopt.

It may also be useful for other institutions that work with children and young people, such as youth associations and sports clubs. It is also offered as an input to guidance that may be developed by the government or national public bodies

We are launching this guide together with a consultation and we welcome your feedback. Please download the guide and send us your views on the consultation form linked to below. Everyone is welcome to respond, anonymously if you prefer.

Download the guidance for England and Wales here:

Equality Act guide

Send us your views on the guidance by responding to the consultation here

Sex Matters Co-founder, Maya Forstater, says: 

“In general schools should not treat boys and girls differently. But where they do for objectively justified reasons, such as for safety, fairness and bodily privacy then the rules do not need to be renegotiated for individual children. Schools can sensitively accommodate all. Schools need to have clear rules and expectations for all children. They shouldn’t be pushed by fears and uncertainty about the Equality Act to undermine safeguarding.”

Transgender Trend Founder Stephanie Davies-Arai says:

“Calls for “inclusion” or against “bigotry” should not be used to pressure children to accept sharing changing rooms with members of the opposite sex. It should be remembered that each cohort of girls will include girls with religious beliefs, girls who have been victims of sexual abuse and girls who are simply uncomfortable sharing toilets or getting changed with male pupils – and that as children get older it will become less and less appropriate to share such spaces.”

The guide states “It is compulsory under school premises regulations to provide single-sex toilets and washing facilities for children aged 8 and over; and it will always be lawful under the Equality Act to exclude children from toilets, washing, changing rooms and sleeping accommodation provided for children of the opposite sex.”

Schools may be able to offer unisex or flexible facilities that can be used by a child expressing distress at changing with their own sex.

The guide notes that existing EHRC technical guidance states that “A suitable alternative might be to allow the pupil to use private changing facilities, such as the staff changing room or another suitable space.”

However, many advocacy organisations promote the idea to schools that they must let children use opposite sex facilities, and keep their sex a secret. 

When it comes to school sport, the guide says section 195 of the Equality Act allows for separate sex sports where the physical strength, stamina and physique of the average girl would put her at a disadvantage compared to boys of the same age. 

The guide emphasises the need for schools to have clear, workable rules that take into account the needs and rights of all pupils in line with the school’s Public Sector Equality Duty obligations.

Balancing the needs of trans-identified children with all pupils in sport, changing rooms, toilets and residential accomodation should not be left to individual schools to decide. Teachers and parents need clear legal guidance. They have been let down by the EHRC and the Department for Education. This guidance provides much needed clarity and an easy to follow model policy.

Download the Scotland version of the guidance here:

Equality Act guide

Send us your views on the guidance by responding to the consultation here

About Sex Matters:

www.sexmatters.org

Sex Matters is a UK based not-for-profit organisation. It campaigns, advocates and produces resources to promote clarity about sex in public policy, law and culture. It has a singular mission: to re-establish that sex matters in rules, laws, policies, language and culture.

Sex Matters was founded by solicitor Rebecca Bull, barrister Naomi Cunningham, policy researcher Maya Forstater, and development biologist Dr Emma Hilton.