If schools press ahead with new trans guidelines, they will never work

Not only that, plans to segregate trans pupils would be unlawful, writes barrister Robin Moira White. So what are they thinking?

‘Transgender pupils are being marched to the front line in the so-called culture wars,’ writes White (Getty Images)

New guidance for schools on trans children will be published next week. Reports suggest that the government has stepped back from an outright ban, but transition at school will require parental consent. Trans children will not be allowed to play sports or use toilets with their correct gender class and, worst of all, teachers with a personal objection will be permitted to misgender children.

Over many months, it appears that the trans-hostile equalities minister Kemi Badenoch (a true oxymoron, that) has been trying to get trans-hostile guidance past her ministerial colleagues. I imagine her real obstacle has been the government law officers who, strangely enough, have not found writing lawful discriminatory guidance easy. Apparently, this difficulty has been circumvented because the soon-to-be-published “guidance” is only to be put out for consultation – and so does not require legal approval.

As a barrister, I can tell you immediately that if the guidance is indeed as suggested, it would be unlawful.

Why? Well, firstly, giving permission to teachers to misgender trans people would clearly be unlawful gender reassignment discrimination. Discrimination against those with Equality Act-protected characteristics – including LGBT+ folk – has been found unlawful in a long series of high-profile cases. Some of the most well-known include telling Christian B&B owners that they cannot refuse same-sex couples (Hall v Bull), and registrars that they must marry them (Ladele).

Gay men and women must be allowed to serve in the military, and the infamous anti-trans case (Maya Forstater) – involving a researcher who lost her job at a think tank after tweeting that transgender women could not change their biological sex (though a tribunal found in her favour) – came with a health warning from the judge that misgendering trans people was likely to be unlawful harassment.

There was also the case of a doctor assessing benefits claimants, who had to follow guidelines respecting trans people – notwithstanding his personal religious beliefs (Mackereth). All pause for thought, I’m sure you’ll agree.

So, if what we’ve been told about the guidance is correct, why should it be any different for our children? Don’t they deserve protection, too? And have we forgotten who should be at the centre of school guidance in the first place – not the teachers, but the children?

Can it really be right that in the week that we are reading the shocking and tragic details of the murder of a trans child in Warrington – Brianna Ghey, who I’ve written about before – the government is reportedly proposing to publish guidance legitimising this kind of discrimination? If the contents are accurate, should a teacher’s own prejudices really take precedence over the feelings and happiness of the children they are supposed to educate?

Fortunately, our schools are largely run and staffed by men, women (and non-binary people!) who have their charges at heart – and who must be horrified at the proposed rules. I, and other specialist lawyers, will be on hand to help them understand if – and where – this guidance is unlawful.

Exclusion of trans people (adult or children) from facilities such as toilets which match their gender identity would almost inevitably be unlawful indirect discrimination. Indirect discrimination can be justified, but it has to be a lawful means of achieving a legitimate aim, the least discriminatory course has to be followed and any discriminatory effect has to be balanced between those involved.

To argue that excluding a trans girl who has declared herself to be such from the girls’ toilets – or making her use the boys’ – does not begin to compare with the effect on those who somehow consider her to be “icky”. Some pupils, perhaps with religious objections to trans pupils, may feel uncomfortable. Well, the least discriminatory solution is for them to use the separate, gender-neutral single cubicles, not to “other” the trans pupil by making them use separate facilities.

Sport at school should be about inclusion – and unless real risks have been identified, the segregation of trans pupils would be unlawful. It’s as simple as that.

To my mind, however, the nastiest part of the alleged proposed guidance relates to the interaction with parents. Fortunately, the vast majority of parents are loving and accepting of their children’s diversity. But some are not.

Teachers and schools are well versed in their child safeguarding principles, many of which have a statutory basis. Sometimes, parents do not have the best interest of the child at heart and schools have to make difficult choices. Ideological “guidance” that supports those kinds of views won’t help.

It is my sincere hope and belief that schools, teachers, teaching unions and organisations will recognise this awful “guidance”, if it is as alleged, and reject it, just as the ideologically-captured Equality and Human Rights Commission’s discriminatory non-statutory guidance on separate and single-sex services – published in April 2022 – has been rejected by service providers. Professionals must be on hand to shoot down the new schools guidance if it does appear.

Let’s also hope that before the end of the consultation period, the present government and its outdated views will be history – and let them take their confected “culture wars” with them.

Robin Moira White is the first barrister to transition in practice at the discrimination bar and is the joint author of the leading text on transgender law