We hear from many parents whose children attend a Stonewall School Champion school. If parents point out to the Head teacher that Stonewall’s advice is incompatible with the new DfE Relationships guidance on several counts, the school’s response is inevitably that they have used Stonewall for a time and are happy with them. It seems that a Stonewall stamp of approval in the form of a gold, silver or bronze star is more important to schools than actually assessing the material for compliance with government guidelines or age-appropriate suitability for children. Ticking the Diversity and Inclusion box takes precedent.
Schools and local authorities need to start paying attention. Lawyer Naomi Cunningham has published a legal analysis of the Stonewall Diversity Champion scheme, Submission and Compliance: risks for Stonewall Champions, which comprehensively exposes the unlawful guidance Stonewall has delivered in its training packages for over 850 companies, charities, government departments and public authorities. It’s hard to understand how, among this illustrious group (including government officials) someone hasn’t noticed that Stonewall is an unelected, unaccountable, special interest lobby group with a very specific political agenda. Nobody has seen fit to assess their guidance for compliance with, say, the Equality Act.
Cunningham’s analysis of Edinburgh University’s 2019 full submission to the scheme reveals not only the sheer amount of time, attention and work it takes to satisfy Stonewall’s demands in order to “embed Stonewall’s values, and Stonewall’s interpretation of the law, deep into the organisation’s policies and management and workplace culture” but the fact that to do so lays you open to legal and reputational risks.
The concrete legal risks include judicial review, as “policies that misstate the law or are based on an erroneous understanding of the law may themselves be unlawful”.
“In the light of the scope of the demands made by Stonewall, and the elaborate efforts Edinburgh University’s answers showed they had expended in complying with them without even making it into the Top 100 Employers, it seems to me that every single public body that is signed up to the Stonewall Champions scheme or makes a submission to the Workplace Equality Index is laying itself open to potential judicial review.”
Already we have seen a 13 year-old schoolgirl, supported by Safe Schools Alliance, successfully apply for judicial review proceedings against Oxfordshire County Council (a Stonewall Champion) who responded by withdrawing their Trans Inclusion Toolkit, and another teenager who challenged the Crown Prosecution Service (also a Stonewall Champion) over its Hate Crime guidance (the CPS also withdrew its guidance).
We decided to take a look at the Stonewall School Champion scheme and assess it according to the points made by Cunningham regarding the Stonewall Diversity Champion scheme and Workplace Equality Index, to see exactly what schools are expected to do to gain their stars and what legal risks they are taking in doing so.
We are unable to access the training but there is plenty of information on Stonewall’s website and we do have information on what a school must have in place in order to achieve their bronze, silver and gold stars for both primary and secondary schools.
1. Does the school show bias towards one protected group at the expense of others?
We begin with the point about a school advertising its priorities. This is what Cunningham says about a company or organisation:
“In other words, it has made a clear public statement about its priorities. Its 3-8 trans staff appear to be absorbing a grossly disproportionate amount of its time and attention compared to any of the other minority groups it employs – and especially as compared to its majority of 510 staff who are biological women.”
We’ll start by looking at what a primary school is expected to do to earn its School Champion stars.
We’ll look in more detail at the content of the teaching later, but to begin with let’s estimate the percentage of primary age children who are LGBT. We don’t call children lesbian, gay or bisexual at this age but there may be a very small percentage of children with same-sex parents. We do now label primary age children ‘transgender’, or more accurately, it is the parents who choose to do so at this age. Maybe the school has a ‘trans child’, maybe not.
So the first question is, does the school devote this amount of money, time and energy to all other protected characteristics as they do for this tiny percentage of children? What about girls, who would make up around 51% of pupils? ‘LGBT’ gets a whole History Month, an ‘International Day of Non-Binary Visibility’, plus ‘regular events to celebrate LGBT people and gender diversity’, girls get just one day on International Women’s Day. What about children with disabilities? Or children from different ethnic groups? Does the school have similar policies or programme of activities focusing on sex, race, and religion or belief? If not, a school is failing in its Public Sector Equality Duty.
A primary school has invested all this money, time and energy on two protected characteristics (sexual orientation and gender reassignment) that are barely applicable in a primary school.
Turning to secondary schools, this is what is demanded by Stonewall for a school to earn its School Champion stars:
A secondary school will have a higher percentage of ‘LGBT’ pupils, now inflated by the range of ‘gender identities’ children have been encouraged to adopt, and the number of teenage girls ‘transitioning’ in clusters. But this will still be a small percentage in comparison with girls. A school may have a high intake of Black pupils, or traveller children, or a high percentage of disaffected and failing working class boys. Is the school investing time and money to work with any organisations to develop similar programmes for these groups?
Stonewall’s programme is built on an ‘anti-bullying’ remit, bolstered by ‘challenging gender stereotypes’ which obliges them to tokenistically include ‘girls’ and ‘sexist bullying’ throughout, without having to seriously address either the bullying of girls or the disproportionate impact on girls of sex stereotyping. Their programme therefore minimises one of the most serious problems facing girls in schools across the UK: sexual harassment and abuse.
How much money and time is the school investing to address the experiences of girls in school, collated in this highly disturbing 2017 report from UK Feminista and the NEU? What is the school’s priority and is the school displaying bias towards LGBT pupils at the expense of girls?
The next point Cunningham makes is connected to this issue.
2. Is the school unlawfully failing to uphold the sex-based rights and protections of girls?
Here’s what Cunningham says about a workplace environment:
“Employers that accept this and permit self-identifying trans women to use women’s toilets, locker rooms, or changing or washing facilities, etc may face indirect discrimination claims. This is a provision, criterion or practice that is applied to the whole workforce, but which is likely to put women at a particular disadvantage compared to men: the employer will be required to show that it is a proportionate means of achieving a legitimate aim.
If women suffer sexual harassment as a result of these policies, employers are likely to be vicariously liable for that.”
Included in Stonewall School Champion requirements for both primary and secondary schools is “gender neutral toilet provision” which means mixed-sex toilets unless Stonewall is suggesting one separate toilet for anyone to use. But we know they are not. Here is one example of the false information Stonewall is giving schools regarding the Equality Act:
“A trans young person may wish to use the toilets and changing rooms of their self-identified gender rather than of their assigned sex. Schools should make sure that a trans student is supported to do so and be aware that this is a legal requirement under the Equality Act.” (An Introduction to Supporting LGBT Young People, 2015, p. 21)
The Equality Act in fact provides that separate sex facilities are lawful as a proportionate means of achieving a legitimate aim (Equality Act 2010 Schedule 3, Part 7, Section 26).
Schedule 3, Part 7, Section 27, 5 (b) cites one condition as: “the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.”
Cunningham points out that Regulations 20, 21 and 24 of the Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide single sex toilet and changing facilities. Likewise, schools in England must comply with School Premises (England) Regulations (2012) which provides that “Separate toilet facilities for boys and girls aged 8 years or over must be provided except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time.” In Wales the Education (School Premises) Regulations 1999 provides the same.
Both sexes may feel uncomfortable about sharing toilets with the opposite sex for reasons of privacy, but girls clearly have more reason to object than boys, whether toilets are ‘gender neutral’ or separated on the basis of ‘gender identity’ in place of biological sex.
We have documented the harmful impact of ‘gender neutral’ toilets on girls in schools here.
There is one more point to make here, given the endemic rate of sexual harassment of girls in schools across the UK. Department for Education Relationships & Sex Education guidance uses this example of ‘positive action’ a school can take to address a disadvantage affecting one group:
“Provisions within the Equality Act allow schools and colleges to take positive action, where it can be shown that it is proportionate, to deal with particular disadvantages affecting one group. A school or college, could, for example, consider taking positive action to support girls if there was evidence they were being disproportionately subjected to sexual violence or sexual harassment.”
Effective strategy is based on prevention, not cure. Implementation of mixed sex toilets does the opposite, by creating a hostile and degrading environment for girls which opens them up to greater risk of sexual harassment.
Any school that follows Stonewall’s advice without considering the impact on girls would be in breach of Public Sector Equality Duty and the school’s obligation to show ‘due regard’ to all protected characteristics under the Equality Act 2010.
Here’s a reminder of what that means:
EHRC: Public Sector Equality Duty for Schools
For a school, having ‘due regard’ means:
• When making a decision or taking an action a school must assess whether it may have implications for people with particular protected characteristics.
• It should consider equality implications before and at the time that it develops policy and takes decisions; not as an afterthought, and it needs to keep them under review.
• It should consciously consider each aspect of the duty (having due regard to the need to eliminate discrimination is not the same thing as having due regard to the need to advance equality of opportunity).
• It should assess the risk and extent of any adverse impact that might result from a policy or decision and the ways in which the risk may be eliminated before the adoption of a proposed policy.
• The equality duty has to be integrated into the carrying out of a school’s functions. The analysis necessary to comply with the duty should be carried out rigorously and with an open mind – it is not a question of just ticking boxes.
3. Freedom of belief and freedom of speech
Cunningham explains the limits of employers’ rights to control the speech of employees here:
“Stonewall encourages employers to adopt policies under which “transphobia” is made a disciplinary matter. That would not be problematic if the Stonewall definition of transphobia were confined to hatred of trans people, or bullying or harassment or other mistreatment of them because of their status as such. But the Stonewall definition goes further:
The fear or dislike of someone based on the fact they are trans, including denying their gender identity or refusing to accept it.
Employers that adopt a definition along these lines are threatening to police their employees’ thoughts and speech to an unacceptable degree.
They are not entitled to do that: disciplining employees for politely expressing their dissent from the Stonewall creed is likely to be unlawful discrimination on grounds of religion or belief.”
In Stonewall’s schools guidance, ‘transphobia’ is defined as a “prejudiced-based incident.”
“Prejudice-based incidents: It is important to record, monitor and report all incidents that are motivated by a prejudice, including those that fall below the definition of bullying.” (Getting Started, Secondary Schools, 2015, p. 14)
“It is important to record, monitor and report all incidents that are motivated by a prejudice, including those that fall below the definition of bullying. A prejudice-based incident is a one-off incident of unkind or hurtful behaviour that is motivated by a prejudice or negative attitudes, beliefs or views towards a protected characteristic or minority group.” (Getting Started, Primary Schools, 2016, p. 14)
The CPS Hate Crime guidance written by Stonewall (now withdrawn) suggested that ‘transphobic language’ could be recorded as a ‘hate incident’.
Stonewall’s insistence that everyone accepts a person’s ‘gender identity’ is based on their own ideological belief, illustrated here in this unevidenced passage:
“Many people know they’re trans from a young age. Some trans people might not have the language or understanding of what it means to be trans until later in life. But it is always something innate and absolutely core to your sense of self. It’s not something that’s a fad, a ‘lifestyle choice’ or something that comes and goes.
“It is an essential part of who you are that can’t be changed. If you aren’t recognised as being the gender you know you are, it’s extremely damaging.”
Stonewall defines ‘trans’ in their glossary:
“An umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth.“Trans people may describe themselves using one or more of a wide variety of terms, including (but not limited to) transgender, transsexual, gender-queer (GQ), gender-fluid, non-binary, gender-variant, crossdresser, genderless, agender, nongender, third gender, bi-gender, trans man, trans woman, trans masculine, trans feminine and neutrois.”
(Schools should note that of these categories, only ‘transsexual’ is defined as a protected characteristic (‘gender reassignment’) in the Equality Act 2010.)
People have a right to disagree with Stonewall’s essentialist belief in a core, innate gendered self. It is especially concerning that children in schools are being taught this pseudoscientific belief as fact and that children’s language is being controlled to fit this belief system – including being compelled to use a range of made-up pronouns.
“Some may wish to change their pronoun from ‘he’ to ‘she’ or vice versa, while others, for example a non-binary young person, may prefer a pronoun that doesn’t relate to male or female gender, such as ‘they’ or ‘zir’.” (An Introduction to Supporting LGBT Young People, 2015, p. 20)
Stonewall is very keen to ensure that everyone’s language is policed at all times throughout the school to fit Stonewall’s belief system:
“It is important to acknowledge if mistakes are made by staff and peers, such as using the wrong name or pronoun of a trans young person without thinking. The best thing to do is apologise to the young person, and anybody else present, correct yourself and move on. It is also important to support colleagues by correcting them too,so that everyone can work together to make the changes. If all staff use the preferred name and pronoun of the trans young person all of the time, rather than only when in the presence of the trans young person, that will help get into a new routine.” (An Introduction to Supporting LGBT Young People, 2015, p. 23)
4. Teaching and policies likely to put girls at a disadvantage to boys
Cunningham defines mixed-sex toilets as a policy which is “likely to put women at a particular disadvantage compared to men”. There are several more examples in Stonewall’s guidance of teaching which is likely to put girls at a disadvantage compared to boys.
Stonewall advises blanket policies without distinguishing between boys and girls because Stonewall does not consider girls to be a distinct sex class, but a ‘gender identity’. Schools, however, have an obligation to recognise that girls are protected as the female sex in the Equality Act 2010 under the protected characteristic ‘sex’. Schools therefore must consider the impact of policy and teaching on girls as distinct from boys.
i) Shared residential accommodation
All Stonewall guidance advises that pupils should use the dormitory that ‘matches’ their gender identity in residential schools and on school trips. This is from Stonewall’s latest guidance published at the end of last year:
“Make sure that trans students and staff are able to access the facilities they feel most comfortable using. For residential schools, this includes being able to sleep in the dormitory that reflects the student’s gender identity.” (Next Steps in Inclusive Education, 2020, p. 11)
Again Stonewall is misrepresenting Equality law. Single-sex accommodation is lawful under the Equality Act and trans-identified pupils may be excluded as a proportionate means of achieving a legitimate aim. EHRC Technical Guidance for Schools says this:
“‘Communal accommodation’ is residential accommodation that includes dormitories or other shared sleeping accommodation, which, for reasons of privacy, should be used only by persons of the same sex. It can also include residential accommodation that should be used only by persons of the same sex because of the nature of the sanitary facilities serving the accommodation.
In addition, in refusing to admit a pupil to communal accommodation because of gender reassignment, the school must also take account of whether this is a proportionate means of achieving a legitimate aim.”
Clearly policy based on ‘gender identity’ not only puts girl at a disadvantage compared to boys, but it puts girls at serious risk. The scenario where a male classmate shares the girls’ dormitory is a violation of girls’ boundaries without their consent. But even more serious is the scenario where a girl who identifies as a boy is permitted to use the boys’ dormitory. The school would be liable in the case of a resulting rape or a pregnancy as a result of consensual sex.
Stonewall guidance advises that sports are separated on the basis of gender identity in place of sex, for example:
“It is important a trans young person is able to participate in sports teams consistent with their gender identity, unless there are reasonable safety concerns. This is unlikely for most sports and age groups under 18.” (An Introduction to Supporting LGBT Young People, 2015, p. 21)
This is incorrect. Mixed-sex sports are only safe for girls at primary school before children start puberty and boy’s physical strength develops. EHRC Technical Guidance for schools in England states:
“If the physical strength, stamina or physique of the average pupil of one sex would put him or her at a disadvantage compared to the average pupil of the other sex as a competitor in a sport, game or other competitive activity, it is not unlawful for those arranging the event to restrict participation in the activity to pupils of one sex.
In considering whether separate events should be organised for boys and girls, the age and stage of development of the children competing in the activity should be taken into account. Therefore this exception is much less likely to apply to children of primary school age.”
After puberty begins, boys develop a physical advantage over girls which creates unfair competition for girls and puts girls’ safety at risk. A ‘gender identity’ policy bestows further advantage for boys who are now able to use their physical advantages to take girls’ positions and awards.
iii) Erasure of lesbians
The Equality Act is very clear on what sexual orientation means and it is a protected characteristic:
(1)Sexual orientation means a person’s sexual orientation towards—
(a)persons of the same sex,
(b)persons of the opposite sex, or
(c)persons of either sex.
Stonewall has changed the definition from the legal term ‘sex’ to their own term ‘gender.’
“Gay: The word gay refers to someone who falls in love with, or wants to have a relationship or partnership with, people who are the same gender as them.” (Getting Started, Primary Schools, 2016, p. 4)
And Stonewall is very clear about what this means on their website page The Truth about Trans:
“So, could a lesbian have a trans woman as a lesbian partner, or a gay man be with a trans man?
Of course. If they fancy each other. First and foremost, we need to recognise that trans women are women, and trans men are men.”
This effective erasure of gay and lesbian people once again has a greater impact on young lesbians who are now being pressured to accept that heterosexual men are lesbians and it is transphobic to reject a man with a penis as a sexual partner. If a school chooses to teach children Stonewall’s definition this would not only be in breach of the Equality Act protected characteristic ‘sexual orientation’ but it would put young same-sex attracted girls at risk of confusion at best and inability to recognise coercion into sex with a man at worst.
iv) Challenging gender stereotypes
In breach of the new DfE Relationships and Sex Education guidance, all Stonewall schools guidance links challenging gender stereotypes to changing gender identity. For example:
Gender stereotyping/gender identity
“Start by addressing gender stereotypes using the ideas above. Then link to the ideas in this box. Define a few key terms (e.g. gender identity, trans and non-binary) using glossaries in Stonewall guides” (10 Steps to Tackling HBT Language in your School, 2018, p. 25)
This theme is threaded through the School Champion criteria for earning stars:
Primary Bronze level: Pupils have age-appropriate lessons on celebrating difference, gender identity and gender stereotypes.
Secondary Bronze level: Students have had opportunities to discuss gender stereotypes and gender identities.
Secondary Silver level: Students have had multiple chances to discuss gender stereotypes and gender identities, and lessons on this.
The idea that the only way to challenge gender stereotypes is to ‘identify’ out of your sex to the opposite sex or a ‘non-binary’ identity reinforces the gender stereotypes for each sex as normal and natural. As the pressure of sex stereotypes disproportionately affects and disadvantages girls compared to boys, a school that reinforces those stereotypes through teaching ‘gender identity’ is further disadvantaging girls. The number of teenage girls in schools who are now ‘identifying’ out of girlhood is a reflection of the disproportionate damage being done to girls through teaching ‘gender identity.’
v) Erasure of the word ‘girl’
Stonewall schools guidance advocates the avoidance of the words ‘girls’ and ‘boys’. For example:
“Try to avoid making distinctions between boys and girls. For example, don’t separate boys and girls for activities or use language such as ‘boys’ and girls.’” (Getting Started, Primary Schools, 2016, p. 33)
Not using the words ‘boys’ and ‘girls’ is not equal. If a school replaces the words ‘girls’ and ‘boys’ with ‘gender neutral’ language, the result will be reversion to a male default. It is critical that girls can freely and proudly use the word ‘girl’ and it is necessary if girls are to be visible. Girls should never feel hesitant about using the word ‘girl’ in case it offends someone. If ‘boy’ and ‘girl’ are unspoken it is the word ‘girl’ that will be lost, not the word ‘boy’. There is plenty of evidence attesting to the erasure of the word ‘woman’ and its replacement with offensive and demeaning terms such as ‘menstruator’ and ‘uterus haver.’ This is not happening to the word ‘man.’
Although there are situations where it is unnecessary to distinguish between boys and girls, schools have an obligation to remember that girls are a protected group under the Equality Act. If a school instigates blanket ‘gender neutral’ policies there is a danger that girls’ unique experiences and needs will be hidden. In terms of issues such as boundaries, privacy and consent it is critical that girls are not made to feel there is something ‘wrong’ with distinguishing male from female because the school sends a strong message that ‘gender neutral’ is ‘good’ and ‘inclusive.’
Schools that have signed up to the Stonewall School Champions scheme are putting themselves at risk of legal action and judicial review. Policies implemented on Stonewall’s advice are particularly disadvantageous for, and discriminatory towards, girls and create clear safeguarding risks. Using Stonewall for a long time and being ‘happy with them’ is no excuse not to assess their materials now as the new DfE Relationships and Sex Education guidance advises.
We agree with Naomi Cunningham’s conclusion. Don’t submit to Stonewall.
For our full analysis of all Stonewall school guides since 2015 download this free PDF.
For our simple guide to Equality law and statutory schools guidance which answers the most frequently asked questions from parents, download the free pdf here.